Control of Air Pollution: Minor Amendments to Emission Requirements Applicable to Small Nonroad Spark Ignition Engines and Marine Spark Ignition Engines

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 90 and 91

[FRL-6229-3]

Control of Air Pollution: Minor Amendments to Emission

Requirements Applicable to Small Nonroad Spark Ignition Engines and

Marine Spark Ignition Engines

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes to amend provisions of two existing

rules applicable to nonroad engines. This document proposes amendments

to regulations applicable to small spark-ignition (Small SI) engines

under 19 kilowatts (kW) and proposes specifically to revise the

applicability of that rule to certain engines used in recreational

applications and to revise the applicability of the handheld emission

standards to accommodate cleaner but heavier four stroke engines. This

document also proposes to amend regulations applicable to marine spark

ignition (Marine SI) engines to provide compliance flexibility for

small volume engine manufacturers during the standards phase in period.

Lastly, this proposal contains a minor revision to the existing

replacement engine provisions for Small SI and Marine SI engines to

address issues that may arise concerning the importation of such

engines. No significant air quality impact is expected from these

amendments.

DATES: Written comments on this NPRM must be submitted on or before

April 5, 1999. EPA will hold a public hearing on March 5, 1999 starting

at 10:00 am; requests to present oral testimony must be received on or

before March 1, 1999. The Agency will cancel this hearing if no one

requests to testify. Members of the public should call the contact

person indicated below to notify EPA of their interest in testifying at

the hearing.

[[Page 5252]]

Interested persons may call the contact person after March 1, 1999 to

determine whether and where the hearing will be held.

ADDRESSES: Written comments should be submitted (in duplicate, if

possible) to: EPA Air and Radiation Docket, Attention Docket No. A-98-

16, Room M-1500, (mail code 6102), 401 M Street, SW, Washington, DC

20460. Materials relevant to this rulemaking are contained in this

docket and may be viewed from 8:00 a.m. to 5:30 p.m. weekdays. The

docket may be reached by telephone at 202-260-7548. As provided in 40

CFR part 2, a reasonable fee may be charged by EPA for photocopying.

The public hearing will be held in Washington, DC at a location to be

determined; call 202-564-9276 for further information.

FOR FURTHER INFORMATION CONTACT: Beverly Brennan, Office of Mobile

Sources, Engine Programs and Compliance Division. 202-564-9302. FAX

202-565-2057. E-mail: [email protected]

SUPPLEMENTARY INFORMATION:

Obtaining Electronic Copies of This Document

Electronic Copies of Rulemaking Documents

Electronic copies of the preamble and the regulatory text of this

rulemaking are available via the Internet on the Office of Mobile

Sources (OMS) Home Page (http://www.epa.gov/OMSWWW/). Users can find

Nonroad Engines and Vehicles information and documents through the

following path once they have accessed the OMS Home Page: ``Nonroad

Engines and Vehicles,'' ``Equipment'' or ``Marine''.

Table of Contents

I. Regulated Entities

II. Legal Authority and Background

III. Description of Proposed Revisions

A. Revision to the definition of ``handheld'' to accommodate four

stroke engines

B. Applicability of the Small SI rule to engines used in certain

recreational applications

C. The addition of provisions to the Marine SI rule to provide phase

in flexibility for small volume manufacturers

D. Revisions of rules involving replacement engines to address

issues related to imported engines

IV. Environmental Benefit Assessment

V. Economic Impacts

VI. Public Participation

VII. Administrative Requirements

A. Administrative Designation

B. Paperwork Reduction Act

C. Regulatory Flexibility

D. Unfunded Mandates Reform Act

E. Executive Order 12875: Enhancing Intergovernmental Partnerships

F. Executive Order 13084: Consultation and Coordination with Indian

Tribal Governments

G. National Technology Transfer and Advancement Act of 1995 (NTTAA)

H. Children's Health Protection

I. Regulated Entities

Entities potentially affected by this action are those that

manufacture or introduce into commerce new small spark-ignition nonroad

engines or equipment, new marine spark ignition engines or equipment,

and new large compression ignition engines or equipment. Regulated

categories and entities include:

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Category Examples of regulated entities

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Industry............................... Manufacturers, importers and

users of nonroad small (at or

below 19 kW) spark ignition

engines and equipment.

Manufacturers, importers and

users of marine spark ignition

outboard, personal watercraft

and jetboat engines.

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This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities likely to be regulated by this

action. This table lists the types of entities that EPA is now aware

could potentially be regulated by this action. Other types of entities

not listed in the table could also be regulated. To determine whether

your company is regulated by this action, you should carefully examine

the applicability criteria in Secs. 90.1 and 91.1 of title 40 of the

Code of Federal Regulations. If you have questions regarding the

applicability of this action to a particular entity, consult the person

listed in the preceding FOR FURTHER INFORMATION CONTACT section.

II. Legal Authority and Background

A. Statutory Authority

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

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

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

7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550, and 7601(a)).

B. Background

EPA promulgated final regulations applicable to spark-ignition

nonroad engines at or below 19kW (Small SI engines) on July 3, 1995 (60

FR 34582, codified at 40 CFR Part 90) and final regulations applicable

to spark-ignition marine outboard and personal watercraft (including

jetboat) engines (Marine SI engines) on October 4, 1996 (61 FR 52088,

codified at 40 CFR Part 91).1

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\1\ The preamble to the final Marine SI rule (61 FR 52090)

explains that for purposes of the Marine SI rule, jetboats are

considered as personal watercraft, except where their engines are

derived from sterndrive or inboard type marinized automotive blocks.

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The Small SI regulations took effect with model year 1997 for the

majority of covered engines and in the 1998 model year for certain

higher displacement handheld engines. The Marine SI rule takes effect

with 1998 or 1999 engines, depending upon their usage, and involves a

corporate average standard which tightens each year through 2006. Both

rules prohibit engine manufacturers from introducing into commerce any

engine not covered by a certificate of conformity issued by EPA under

the regulations (40 CFR 90.1003(a)(1)(i); 40 CFR 91.1103(a)(1)(i)). The

rules also prohibit equipment and vessel manufacturers from introducing

new nonroad equipment and vessels into commerce unless the engine in

the equipment or vessel is certified to comply with the applicable

nonroad emission requirements (40 CFR 90.1003(a)(5); 40 CFR

91.1103(a)(5)).2

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\2\ The regulations also prohibit, in the case of any person,

the importation of uncertified Small SI engines and Marine SI

engines manufactured after the applicable implementation date for

the engine. The regulations also prohibit the importation of

equipment containing Small SI engines unless the engine is covered

by a certificate of conformity. (40 CFR 90.1003(a)(1)(ii) and 40 CFR

91.1103(a)(1)(ii)).

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Provisions to allow engine manufacturers to produce replacement

engines that were not certified to current standards were added to each

of the two rules described above by a direct final rule issued August

7, 1997 (62 FR 42638).

A Notice of Proposed Rulemaking (NPRMs) to adopt Phase 2 standards

for Small SI engines has been published (63 FR 3950, January 27, 1998).

No Phase 2 program is contemplated at this time for the Marine SI rule.

The amendments proposed below would apply to the Phase 1 programs of

both rules and be carried forward into the future program for Small SI

engines.

III. Description of Proposed Revisions

A. Revision to the Definition of Handheld To Accommodate Four Stroke

Engines

The Small SI rule contains separate sets of exhaust emission

standards for handheld and nonhandheld engines. The handheld standards

were set at levels considerably less stringent than the nonhandheld

standards to accommodate the lightweight, but high emission, two stroke

engines that have

[[Page 5253]]

historically been used in handheld equipment.

To limit the use of two stroke engines to that equipment that

really require the weight advantage and multipositional capability

afforded by two stroke technology, the criteria under which a piece of

equipment may be deemed ``handheld'' are strictly defined by

Sec. 90.103(a)(2). Equipment must meet at least one of the following to

be considered ``handheld'':

(i) The engine must be used in a piece of equipment that is

carried by the operator throughout the performance of its intended

function(s);

(ii) The engine must be used in a piece of equipment that must

operate multipositionally, such as upside down or sideways, to

complete its intended function(s);

(iii) The engine must be used in a piece of equipment for which

the combined engine and equipment dry weight is under 14 kilograms,

no more than two wheels are present on the equipment and at least

one of the following attributes is also present:

(A) The operator must alternately provide support or carry the

equipment throughout the performance of its intended function(s);

(B) The operator must provide support or attitudinal control for the

equipment throughout the performance of its intended function(s);

and (C) The engine must be used in a generator or pump;

(iv) The engine must be used to power one-person augers, with a

combined engine and equipment dry weight under 20 kilograms.

Since the Small SI rule was finalized, a few manufacturers have

introduced lightweight four stroke engines that have multipositional

capabilities and that have begun to be used in certain handheld

products. These engines are somewhat heavier than two stroke engines

but have exhaust emission levels that are much lower. One manufacturer

of lightweight equipment, has proposed a portable pump, historically

powered by a two stroke engine, that would exceed the 14 kilogram

weight limit at 40 CFR 90.103(a)(2)(iii) because it would be built with

a small, lightweight four stroke engine. The engine would be much

cleaner than the alternative two stroke, but because of the weight

limitation, the equipment could not be considered ``handheld''. The

lightweight four stroke engines, while much cleaner than required by

the handheld standards, can not yet meet the nonhandheld standards

which were set based on the capabilities of other four stroke engines.

In theory, a heavier four stroke engine certified to nonhandheld

standards, could be used in these applications. However, EPA believes

that the added weight would be a marketing problem and would cause the

manufacturers to stick with higher emitting two stroke engines. To

avoid the undesirable situation where the regulations encourage an

equipment manufacturer to use a higher emitting engine, we are today

proposing an amendment to both weight limits described above (14

kilograms in (iii) and 20 kilograms in (iv)) that would permit an

equipment manufacturer to exceed the weight limits in cases where the

manufacturer could demonstrate that the extra weight was the result of

using a four stroke engine or other technology cleaner than the

otherwise allowed two stroke.

EPA considered whether to simply raise the weight limits across the

board, but believes that they are appropriate as promulgated, needing

only to be raised where needed to cover the incremental weight of

cleaner technologies. Further, raising the weight limits across the

board could, in the long run, encourage manufacturers to convert four

stroke nonhandheld equipment to two stroke power. EPA requests comment

on whether there are other facets to the criteria surrounding the term

``handheld'' that could impede adoption of cleaner technology engines

on these tools.

B. Applicability of the Small SI Rule to Engines Used in Certain

Recreational Applications

The Small SI rule as currently written covers all nonroad spark

ignition engines at or below 19 kW ``used for any purpose'', subject to

certain exclusions. Specific exclusions are provided for certain

engines used in underground mining, for engines used in motorcycles

that are subject to emission regulation under 40 CFR Part 86, for

engines used in passenger aircraft, and for engines used in

recreational vehicles which meet certain prescribed criteria.

Those criteria which serve to define an engine as an engine used in

a recreational vehicle are: (i) The engine's rated speed is greater

than or equal to 5,000 rpm; (ii) the engine has no installed speed

governor; (iii) the engine is not used for the propulsion of a marine

``vessel'' as that term is defined by the U.S. Coast Guard; and (iv)

the engine does not meet the criteria cited above in Section A of this

preamble to be categorized as a Class III, IV or V engine (i.e., the

criteria by which an engine is determined to be ``handheld''). Criteria

(i) and (ii) reflect the Agency's belief that engines used to operate

recreational vehicles will operate at high rated speeds and will differ

significantly in design and operation from those used to power

nonhandheld equipment such as lawn, garden and construction equipment.

Recreational vehicles also typically have a variable throttle that is

held open by the operator to achieve speeds above idle and returns to

idle when released. These vehicles experience extremely transient

operation. Further, these vehicles do not have the types of governors

commonly present on nonhandheld lawn and garden type engines which

serve to automatically open the throttle farther when the engine

experiences increased loading as is encountered when, for example,

moving a lawnmower from an area of short grass into an area of long

grass. Finally, EPA stated that the steady-state test procedures being

adopted for the Small SI rule would not be appropriate for these more

transient applications.

The criteria which serve to define an engine as ``handheld'' were

established to restrict the use of the more lenient Class III, IV or V

standards to engines in equipment that needed to be extremely light in

weight so that it may be easily carried or easily supported during its

operation, and/or which needed to be able to operate multipositionally.

The need for very low weight has historically been addressed through

the use of two stroke technology, which produces greater power for a

given weight and size (but higher emissions) than a four stroke engine

and does so without the need for a sump full of oil at the bottom of

the engine.

The Small SI rule was written without the knowledge that

approximately 8,000 Small SI engines per year are built by a variety of

companies (including a number of very small entities) for specific

application in model boats, aircraft and cars. These engines were not

included in any calculations of emission inventories, nor were

reductions from these engines or costs of compliance considered in the

development of the Phase 1 Small SI rule or the Phase 2 NPRM. EPA has

no emission data from these engines and does not have data appropriate

to determine whether the test cycle used for handheld (or nonhandheld)

engines is appropriate for these engines. These vehicles are

predominantly radio controlled model airplanes and as such are clearly

``recreational'' in nature as that term is generally understood.

However, according to the definition of that term in the Small SI rule,

such engines could be considered handheld because of their multi

positional capabilities and therefore fall outside of

[[Page 5254]]

coverage under the term ``recreational''.3 EPA believes that

these engines would be better addressed by a future rulemaking intended

specifically to address recreational engines. EPA is therefore

proposing in this rulemaking to amend the existing regulations to

consider these vehicles and engines as recreational and therefore

excluded from coverage under the Small SI rule. Thus, engines used to

propel vehicles in flight through air provided those engines meet the

other existing criteria to be categorized as recreational, would be

excluded from the scope of the rule. EPA believes that model cars and

boats are not required to operate ``multipositionally'' to complete

their intended function so that the spark ignition engines used in

model cars and boats are therefore considered ``recreational'' by the

existing regulatory text and are already excluded from the Small SI

rule. EPA requests comment on all aspects of this proposed change.

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\3\ A few of these vehicles may be controlled by flexible tether

lines, but in any case they are not held in hand during operation.

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C. The Addition of Provisions to the Marine SI Rule To Provide Phase-In

Flexibility for Small Volume Manufacturers

The emission requirements for Marine SI engines were promulgated on

October 4, 1996 and took effect with the 1998 model year for outboard

engines and the 1999 model year for personal watercraft and jetboats.

The Marine SI rule was written with considerable input from large

volume marine engine manufacturers and their association, the National

Marine Manufacturers Association. This rule results in a 75% reduction

in exhaust hydrocarbons when calculated from uncontrolled engines. The

standards phase in via incremental reductions each year through 2006.

The standards will result in considerable shifts in technology away

from high emitting two stroke technology to cleaner four stroke or

direct injection two stroke designs.

The standards are ``averaging standards'' in that some engine

families are expected to be below the standards and generate emission

credits while some are expected to be above the standards and use

credits. Similar to other mobile source programs, these credits may be

banked for future use or traded between manufacturers.

The phase in of the standards was designed to permit marine engine

manufacturers to introduce new technology engines and phase out old

technology engines in an orderly and cost effective fashion. In

addition, flexible certification testing requirements and exemptions

from production line and in-use testing requirements were implemented

for old technology engines to reduce the compliance costs of the rule

for engines destined for phase out.

The development of the Marine SI rule took several years and

involved numerous meetings with manufacturers. Both an NPRM (59 FR

55930, November 9, 1994) and SNPRM (Supplemental Notice of Proposed

Rulemaking, 61 FR 4600, February 7, 1996) were published. Both EPA and

NMMA did considerable outreach to marine engine manufacturers during

this period to inform them of progress and likely requirements of

various proposals. Despite this process, there was no input from small

volume outboard and personal watercraft engine manufacturers until

after the closing date of the comment period for the SNPRM. In this one

comment,4 Tanaka expressed concerns about the

appropriateness of the averaging standards on an engine manufacturer

with likely only one engine family. Tanaka also expressed doubts that

credits would be available in the marketplace and whether, even if

available, they would be affordable to a manufacturer with a very small

annual sales volume. EPA's Response to Comments 5 document

addresses small volume concerns by pointing out that the final rule

provided reduced production line and in-use testing requirements,

simplified certification procedures and administrative flexibilities

for existing technology engines [the likely products of small volume

manufacturers]. Beyond those flexibilities, the Response to Comments

document explains that:

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\4\ Letter of May 13, 1996 from Randy W. Haslam, Vice-President,

Tanaka International Sales and Marketing. Contained in the docket

for this rulemaking. (Docket No. A-98-16.)

\5\ EPA's Response To Comments document prepared for the final

Marine SI rule can be found in the docket for this rulemaking.

(Docket No. A-98-16.)

For smaller volume manufacturers the final regulation allows

these manufacturers to purchase emission credits from the market

place as an alternative to employing control technologies to meet

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the standard.

Since implementation of the Marine SI rule began, EPA has received

further correspondence from Tanaka petitioning EPA to amend the rule

6 on the basis that the rule's fleet averaging concept

provides benefits to manufacturers with diverse product lines but not

to a company like Tanaka, which has only one engine family--a very low

production, low powered engine. Tanaka argues that its competitors

could sell similar engines with higher emissions because they could

offset those emissions with credits from larger engines. Tanaka desires

flexibility to continue production of its engine until the final phase-

in of the standards at which time it will exit the market. Tanaka

believes it can comply with the Marine SI requirements through about

the 2002 model year through engine improvement and credits it plans to

generate in earlier years. After that, it desires flexibility to stage

an orderly exit from the market. It does not wish to commit the funds

necessary to meet the final phase in standards for its low level of

U.S. sales.

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\6\ Letter of June 30, 1997 from Randy W. Haslam, Vice-

President, Tanaka International Sales and Marketing. Contained in

the docket for this rulemaking. (Docket No. A-98-16.)

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EPA has also been contacted by Inboard Marine Corporation, a low

volume manufacturer of personal watercraft engines. This company

maintains that it is dependent upon ``off-the-shelf'' technology to

reduce its emissions. Like Tanaka, it has a narrow product line and

argues that the averaging, banking and trading program in the Marine SI

rule can not be counted on to provide credits through trading, nor to

provide them at a reasonable price. Inboard Marine believes it can

comply in the early years of the Marine SI rule but may need relief in

the late years of the standard phase-in. It intends to discontinue its

current engine by the final phase-in year (2005) and meet the ultimate

standards of 2006 with a redesigned engine.

EPA recognizes that the Marine SI standards are technology forcing.

Thus, it was appropriate to include averaging, banking and trading

(ABT) provisions to facilitate their economical implementation.

However, ABT is most useful to manufacturers with diverse product

offerings. The two companies mentioned above appear to be at a

disadvantage to their competitors because of their limited offerings.

Further, EPA can not provide any certainty that credits will be

available to them. EPA notes that in the on-highway heavy-duty engine

program, there were no credit transactions between manufacturers until

approximately seven years after the ABT provisions were added to the

rules.

In rules proposed since the Marine SI rule was promulgated, EPA has

gone to considerable lengths to provide mechanisms to ease the

implementation of new standards and requirements for low volume

producers. Both the Small SI Phase 2 NPRM and the Nonroad CI Phase 2

and 3 NPRM contain numerous

[[Page 5255]]

special provisions to delay or otherwise ease the impact of the

standards on low volume engine families, low volume equipment

manufacturers or low volume engine manufacturers. By contrast, the

Marine SI rule contains no such provisions.

In this document, EPA proposes to add provisions to the Marine SI

rule to permit small volume engine manufacturers to have family

emission limits (FELs) in excess of applicable standards where credits

are not available to cover such excess. This provision would be limited

to one period of four consecutive model years which could not begin

until the 2000 model year. EPA believes that the affected manufacturers

can likely make changes to the affected engines to achieve compliance

with standards in the early years and even bank a few credits, but may

have more difficulty as the standards tighten later in the phase-in.

This flexibility would expire at the end of the 2009 model year. EPA

believes this expiration date will provide adequate time for small

volume engine manufacturers to adapt off the shelf technology to their

engines, if available, or to redesign their engines to comply with the

final standards. EPA believes that the inclusion of this provision is

consistent with its approach in other rules, and that it will meet the

needs of small volume manufacturers without creating adverse impacts on

air quality or adverse competitive situations. Further, EPA believes

that the way this provision is structured may lead the affected

manufacturers to clean up their engines more in the early years than

their competitors. EPA proposes that the applicability of this

provision be limited to engine manufacturers who sell no more than 1000

marine outboards and personal watercraft engines per year in the United

States.

Based on the technological limitations that these small volume

manufacturers have, and their limited abilities to use flexibilities

offered by averaging, banking, and trading to avoid increased costs,

EPA believes additional flexibility is appropriate. The implementation

of this additional flexibility does not change EPA's overall conclusion

that the category of Marine SI engines will allow the greatest

achievable emission reduction considering technology and cost. EPA

requests comment on the appropriate quantitative limit for this

provision and on all other aspects of this proposal.

D. Revisions of Rules Involving Replacement Engines To Address Issues

Related to Imported Engines

In a recent direct final rule, EPA modified its regulations

applicable to Small SI and Marine SI engines (62 FR 42638, August 7,

1997) to permit the sale of uncertified engines for replacement

purposes. The direct final rule addressed limited instances involving

equipment built before EPA regulations went into effect where engine

replacement is a more economical alternative than engine repair and

certified engines are not available to fit.

Under the direct final rule, the engine manufacturer being

approached to sell an uncertified engine for replacement purposes is

required to first ascertain that no certified engine produced by itself

or the manufacturer of the original engine (if different) is available

with suitable physical or performance characteristics to repower the

equipment. When the manufacturer ascertains that no certified engine is

available that will fit or perform adequately, it can sell an

uncertified engine subject to certain controls, e.g. it must take the

old engine in exchange and the new engine must be clearly labeled for

replacement purposes only.

EPA's Small SI and Marine SI engines regulations adopt the Clean

Air Act definition for the term ``manufacturer.'' EPA has become

concerned that the term ``manufacturer'' by definition in the Clean Air

Act can include an importer who may have had nothing to do with the

actual production of the engine.7 In such a case the

requirement to ascertain whether a certified engine produced by itself

has suitable physical or performance characteristics could lead to

abuse. EPA is concerned that importers could misinterpret this

provision to permit, for example, an equipment operator to import an

uncertified engine and determine, since the importer does not make

engines, that no certified engines are available from itself to

appropriately power the vehicle. EPA proposes to amend the replacement

engine provisions in both rules to require that, in cases where a

replacement engine might be imported, the determination be made by the

manufacturer's U.S. representative that holds a current certificate of

conformity from EPA for the make of engine requiring replacement. As an

alternative and especially if no such entity exists, such as may happen

in a piece of imported equipment built prior to the effective date of

EPA's regulations whose engine manufacturer has not certified, the

equipment operator could approach other engine manufacturers to obtain

a suitable replacement engine under the existing replacement engine

provisions. EPA requests comment on this proposed amendment.

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\7\ Section 216(1) of the Clean Air Act defines manufacturer as

``any person engaged in the manufacturing or assembling of new * * *

nonroad engines or importing such * * * engines for resale * * * but

shall not include any dealer with respect to * * * new nonroad

engines received by him in commerce''.

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IV. Environmental Benefit Assessment

This rule is being proposed to reduce the burden or prevent abuse

of various provisions of several existing rules. No significant air

quality impacts one way or the other are expected. The provisions

applicable to Small SI handheld engines to accommodate cleaner but

heavier engines remove a barrier to the incorporation of cleaner engine

technology in handheld equipment. The provisions applicable to

recreational engines will have no significant impact on air quality.

The subject engines were not included in Small SI inventory

calculations or in benefits attributed to the Small SI rule. The

revisions to provide phase-in flexibility to very small marine engine

manufacturers will also have no impact on air quality. The marine rule

revisions are designed to encourage these companies to clean up their

engines as much as possible in the early phase-in years and may

actually result in the production of small quantities of engines that

are cleaner than those of similar power built by larger competitors

using credits. Lastly, the revisions to replacement engine provisions

will reduce the likelihood of abuse in cases where older design engines

may be desired for replacement needs.

V. Economic Impacts

The revisions contained in this rulemaking are not expected to

increase costs for any entity. In fact, the revisions to the

recreational provisions in the Small SI rule will eliminate potential

costs under the Small SI rule for affected manufacturers. The revisions

affecting the weight of handheld equipment provide greater flexibility

in engine choice to handheld equipment manufacturers. The revisions to

the Marine SI rule are intended to reduce adverse economic impacts of

that rule on small entities. The revisions to replacement engine

provisions serve only to remove a potential unintended benefit that

would accrue only to importers of replacement engines who were not also

engine producers. Therefore, because this notice proposes to alter

existing provisions, and that

[[Page 5256]]

alteration provides regulatory relief, there are no additional costs to

original equipment manufacturers associated with this specific

proposal.

The costs and emission reductions associated with the Small SI rule

were developed for the July 3, 1995 final rulemaking. The costs and

emission reductions associated with the Marine SI rule were developed

for the October 4, 1996 rulemaking. Costs for future programs for Small

SI engines were developed for the proposal of January 27, 1998. We do

not believe the changes being implemented today affect the costs and

emission reductions published as part of those rulemakings.

VI. Public Participation

This rulemaking action is being prepared largely as a result of

letters that have been received from engine manufacturers concerning

the various nonroad rules that are addressed by these revisions. Copies

of all such letters are available in the docket. EPA expects to provide

copies of this NPRM to trade groups representing Small SI and Marine SI

engine and equipment manufacturers as well as to environmental groups

and state organizations. EPA welcomes written comment on any aspect of

the revisions and issues discussed in this document. EPA will hold a

public hearing on this rulemaking if anyone requests to speak at such a

forum.

EPA welcomes comment on any aspect of these revisions and will

consider all comments presented at a public hearing (if one occurs) as

well as all written comments received before the deadline described

above.

VII. Administrative Requirements

A. Administrative Designation

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may: (1) Have an annual

effect on the economy of $100 million or more or adversely affect in a

material way the economy, a sector of the economy, productivity,

competition, jobs, the environment, public health or safety, or State,

local, or tribal governments or communities; (2) Create a serious

inconsistency or otherwise interfere with an action taken or planned by

another agency; (3) Materially alter the budgetary impact of

entitlements, grants, user fees, or loan programs or the rights and

obligations of recipients thereof; or, (4) Raise novel legal or policy

issues arising out of legal mandates, the President's priorities, or

the principles set forth in the Executive Order. It has been determined

that this rule is not a ``significant regulatory action'' under the

terms of Executive Order 12866 and is therefore not subject to OMB

review.

B. The Paperwork Reduction Act

This action does not add any new requirements under the provisions

of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Office of

Management and Budget (OMB) has approved the information collection

requirements that apply to the Small SI final rulemaking or the Small

SI Phase 2 NPRM (60 FR 34582, July 3, 1995 and 63 FR 3950, January 27,

1998, respectively) or submitted to OMB in association with the Marine

SI final rulemaking (61 FR 52088, October 4, 1996).

Burden means the total time, effort, or financial resources

expended by persons to generate, maintain, retain, or disclose or

provide information to or for a Federal agency. This includes the time

needed to review instructions; develop, acquire, install, and utilize

technology and systems for the purposes of collecting, validating, and

verifying information, processing and maintaining information, and

disclosing and providing information; adjust the existing ways to

comply with any previously applicable instructions and requirements;

train personnel to be able to respond to a collection of information;

search data sources; complete and review the collection of information;

and transmit or otherwise disclose the information. An Agency may not

conduct or sponsor, and a person is not required to respond to a

collection of information unless it displays a currently valid OMB

control number. The OMB control numbers for EPA's regulations are

listed in 40 CFR Part 9 and 48 CFR Chapter 15.

C. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This rule will not have a significant adverse economic

impact on a substantial number of small entities. This is because

today's document will provide regulatory relief to both large and small

volume engine and equipment manufacturers by excluding them from

regulation or by permitting greater flexibility in engine choices in

equipment or by providing additional time to comply. Therefore, I

certify that this action will not have a significant economic impact on

a substantial number of small entities.

D. Unfunded Mandates Reform Act

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate, or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule. EPA has determined that

the action proposed today does not include a Federal mandate that may

result in estimated costs of $100 million or more to either State,

local, or tribal governments in the aggregate, or to the private

sector. Therefore, EPA has not prepared a budgetary impact statement

for this document. Moreover, no small governments will be significantly

or uniquely impacted by this rule.

E. Executive Order 12875: Enhancing Intergovernmental Partnerships

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

[[Page 5257]]

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule changes do not create a mandate on State, local or

tribal governments. The rule changes do not impose any enforceable

duties on these entities. Accordingly, the requirements of section 1(a)

of Executive Order 12875 do not apply to this rule.

F. Executive Order 13084: Consultation and Coordination With Indian

Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments or EPA consults with those

governments. If EPA complied by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected and other representatives of

Indian tribal governments ``to provide meaningful and timely input in

the development of regulatory policies on matters that significantly or

uniquely affect their communities.''

Today's rule changes do not significantly or uniquely affect the

communities of Indian tribal governments. Today's proposed rule changes

do not create a mandate for any tribal governments. The rule changes do

not impose any enforceable duties on these entities. Today's proposed

rule changes will affect only those small spark-ignition (Small SI)

engines under 19 kilowatts (kW) used in recreational applications,

cleaner four stroke small SI engines, existing replacement engine

provisions for Small SI and marine spark ignition (Marine SI) engines,

and Marine SI small volume engine manufacturers during the standards

phase in period. Accordingly, the requirements of section 3(b) of

Executive Order 13084 do not apply to this rule.

G. National Technology Transfer and Advancement Act of 1995 (NTTAA)

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (NTTAA), Pub L. 104-113, 12(d) (15 U.S.C. 272 note) directs

EPA to use voluntary consensus standards in its regulatory activities

unless to do so would be inconsistent with applicable law or otherwise

impractical. Voluntary consensus standards are technical standards

(e.g., materials specifications, test methods, sampling procedures, and

business practices) that are developed or adopted by voluntary

consensus standards bodies. The NTTAA directs EPA to provide Congress,

through OMB, explanations when the Agency decides not to use available

and applicable voluntary consensus standards.

This proposed rulemaking does not involve technical standards.

Therefore, EPA is not considering the use of any voluntary consensus

standards.

H. Children's Health Protection

This proposed rule is not subject to E.O. 13045, entitled

``Protection of Children from Environmental Health Risks and Safety

Risks'' (62 FR 19885, April 23, 1997), because it does not involve

decisions on environmental health risks or safety risks that may

disproportionately affect children.

List of Subjects in 40 CFR Parts 90 and 91

Environmental protection, Air pollution control, Confidential

business information, Imports, Incorporation by reference, Labeling,

Nonroad source pollution, Reporting and recordkeeping requirements,

Research.

Dated: January 27, 1999.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, title 40, chapter I, of

the Code of Federal Regulations, is proposed to be amended as follows:

PART 90--CONTROL OF EMISSIONS FROM NONROAD SPARK-IGNITION ENGINES

1. The authority citation of part 90 is revised to read as follows:

Authority: Sections 202, 203, 204, 205, 206, 207, 208, 209, 213,

215, 216, and 301(a) of the Clean Air Act, as amended (42 U.S.C.

7521, 7522, 7523, 7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550,

and 7601(a).)

2. Section 90.1(b)(5)(iv) is revised to read as follows:

Sec. 90.1 Applicability.

* * * * *

(b) * * *

(5) * * *

(iv) The engine does not meet the criteria to be categorized as a

Class III, IV or V engine, as indicated in Sec. 90.103, except for

cases where the engine will be used only to propel a flying vehicle

forward, sideways, up, down or backward through air.

* * * * *

3. Section 90.3 is amended by revising the definition of Handheld

equipment engine to read as follows:

Sec. 90.3 Definitions.

* * * * *

Handheld equipment engine means a nonroad engine that meets the

requirements specified in Sec. 90.103(a)(2) (i) through (v).

* * * * *

4. Section 90.103 is amended by adding paragraph (a)(2)(v) to read

as follows:

Sec. 90.103 Exhaust emission standards.

(a) * * *

(2) * * *

(v) Where a piece of equipment otherwise meeting the requirements

of paragraphs (a)(2)(iii) or (a)(2)(iv) of this section exceeds the

applicable weight limit, emission standards for class III, IV or V, as

applicable, may still apply if the equipment exceeds the weight limit

by no more than the extent necessary to allow for the incremental

weight of a four stroke engine or the incremental weight of a two

stroke engine having enhanced emission control acceptable to the

Administrator. Any manufacturer utilizing this provision to exceed the

subject weight limitations shall maintain and make available to the

Administrator upon request, documentation to substantiate that the

exceedence of either weight limitation is a direct result of

application of a four stroke or enhanced two stroke engine having the

same, less or very similar power to two stroke engines that could

otherwise be used to power the equipment and remain within the weight

limitations.

* * * * *

5. Section 90.1003 is amended by adding and reserving paragraphs

(b)(5)(iv) through (b)(5)(vii) and adding paragraph (b)(5)(viii) to

read as follows:

Sec. 90.1003 Prohibited acts.

* * * * *

(b) * * *

(5) * * *

(iv) [Reserved].

(v) [Reserved].

(vi) [Reserved].

(vii) [Reserved].

(viii) In cases where an engine is to be imported for replacement

purposes

[[Page 5258]]

under the provisions of this paragraph (b), the term ``engine

manufacturer'' shall not apply to an individual or other entity that

does not possess a current Certificate of Conformity issued by EPA

under this part.

PART 91--CONTROL OF EMISSIONS FROM MARINE SPARK-IGNITION ENGINES

6. The authority citation of part 91 is revised to read as follows:

Authority: Secs. 202, 203, 204, 205, 206, 207, 208, 209, 213,

215, 216, and 301(a) of the Clean Air Act, as amended (42 U.S.C.

7521, 7522, 7523, 7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550,

and 7601(a).)

7. Section 91.207 is amended by adding paragraph (e) to read as

follows:

Sec. 91.207 Credit calculation and manufacturer compliance with

emission standards.

* * * * *

(e) Notwithstanding other provisions of this part, for model years

beginning with MY 2000, a manufacturer having a negative credit balance

during one period of up to four consecutive model years will not be

considered to be in noncompliance in a model year up through and

including model year 2009 where:

(1) The manufacturer has a total annual production of engines

subject to regulation under this part of 1000 or less; and

(2) The manufacturer has not had a negative credit balance other

than in three immediately preceding model years, except as permitted

under paragraph (c) of this section; and

(3) The FEL (FELs) of the family or families produced by the

manufacturer are no higher than those of the corresponding family or

families in the previous model year, except as allowed by the

Administrator; and

(4) The manufacturer submits a plan acceptable to the Administrator

for coming into compliance with future model year standards including

projected dates for the introduction or increased sales of engine

families having FELs below standard and projected dates for

discontinuing or reducing sales of engines having FELs above standard;

and

(5)(i) The manufacturer has set its FEL using emission testing as

prescribed in subpart E of this part; or

(ii) The manufacturer has set its FEL based on the equation and

provisions of Sec. 91.118(h)(1)(i) and the manufacturer has submitted

appropriate test data and revised its FEL(s) and recalculated its

credits pursuant to the provisions of Sec. 91.118(h)(1); or

(iii) The manufacturer has set its FEL using good engineering

judgement, pursuant to the provisions of Sec. 91.118(h)(1)(ii) and

(h)(2).

8. Section 91.1103 is amended by adding paragraph (b)(4)(v) to read

as follows:

Sec. 91.1103 Prohibited acts.

* * * * *

(b) * * *

(4) * * *

(v) In cases where an engine is to be imported for replacement

purposes under the provisions of this paragraph (b), the term ``engine

manufacturer'' shall not apply to an individual or other entity that

does not possess a current Certificate of Conformity issued by EPA

under this part.

[FR Doc. 99-2450 Filed 2-2-99; 8:45 am]

BILLING CODE 6560-50-P