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                                                                                                                                  October 8, 2008

                                                                                                                                  Part II

                                                                                                                                  Protection Agency
                                                                                                                                  40 CFR Parts 9, 60, 80 et al.
                                                                                                                                  Control of Emissions From Nonroad
                                                                                                                                  Spark-Ignition Engines and Equipment;
                                                                                                                                  Final Rule
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                                            59034                 Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            ENVIRONMENTAL PROTECTION                                              1,461,000 tons of carbon monoxide                        EPA Headquarters Library, Room
                                            AGENCY                                                                emissions, with the greatest reductions                  Number 3334 in the EPA West Building,
                                                                                                                  in areas where there have been                           located at 1301 Constitution Ave., NW.,
                                            40 CFR Parts 9, 60, 80, 85, 86, 89, 90,                               problems with individual exposures.                      Washington, DC. The EPA/DC Public
                                            91, 92, 94, 1027, 1033, 1039, 1042, 1045,                             The requirements in this rule will                       Reading Room hours of operation will
                                            1048, 1051, 1054, 1060, 1065, 1068, and                               substantially benefit public health and                  be 8:30 a.m. to 4:30 p.m. Eastern
                                            1074                                                                  welfare and the environment. We                          Standard Time (EST), Monday through
                                            [EPA–HQ–OAR–2004–0008; FRL–8712–8]                                    estimate that by 2030, on an annual                      Friday, excluding holidays. The
                                                                                                                  basis, these emission reductions will                    telephone number for the Public
                                            RIN 2060–AM34                                                         prevent 230 PM-related premature                         Reading Room is (202) 566–1744 and
                                                                                                                  deaths, between 77 and 350 ozone-                        the telephone number for the Docket is
                                            Control of Emissions From Nonroad
                                                                                                                  related premature deaths, approximately                  (202) 566–1742.
                                            Spark-Ignition Engines and Equipment
                                                                                                                  1,700 hospitalizations and emergency                     FOR FURTHER INFORMATION CONTACT:
                                            AGENCY:  Environmental Protection 
                                   room visits, 23,000 work days lost,                      Carol Connell, Environmental
                                            Agency (EPA). 
                                                       180,000 lost school days, 590,000 acute                  Protection Agency, Office of
                                            ACTION: Final rule. 
                                                 respiratory symptoms, and other                          Transportation and Air Quality,
                                                                                                                  quantifiable benefits every year. The                    Assessment and Standards Division,
                                            SUMMARY: We are setting emission                                      total annual benefits of this rule in 2030
                                            standards for new nonroad spark-                                                                                               2000 Traverwood Drive, Ann Arbor,
                                                                                                                  are estimated to be between $1.8 billion                 Michigan 48105; telephone number:
                                            ignition engines that will substantially                              and $4.4 billion, assuming a 3%
                                            reduce emissions from these engines.                                                                                           734–214–4349; fax number: 734–214–
                                                                                                                  discount rate. The total annual benefits                 4050; e-mail address:
                                            The exhaust emission standards apply                                  of this rule in 2030 are estimated to be
                                            starting in 2010 for new marine spark-                                                                               
                                                                                                                  between $1.6 billion and $4.3 billion,
                                            ignition engines, including first-time                                assuming a 7% discount rate. Estimated                   SUPPLEMENTARY INFORMATION:
                                            EPA standards for sterndrive and                                      costs in 2030 are many times less at
                                            inboard engines. The exhaust emission                                 approximately $190 million.                              Does This Action Apply to Me?
                                            standards apply starting in 2011 and
                                            2012 for different sizes of new land-                                 DATES: This rule is effective on                            This action will affect you if you
                                            based, spark-ignition engines at or                                   December 8, 2008. The incorporation by                   produce or import new spark-ignition
                                            below 19 kilowatts (kW). These small                                  reference of certain publications listed                 engines intended for use in marine
                                            engines are used primarily in lawn and                                in this regulation is approved by the                    vessels or in new vessels using such
                                            garden applications. We are also                                      Director of the Federal Register as of                   engines. This action will also affect you
                                            adopting evaporative emission                                         December 8, 2008.                                        if you produce or import new spark-
                                            standards for vessels and equipment                                   ADDRESSES:                                               ignition engines below 19 kilowatts
                                            using any of these engines. In addition,                                Docket: All documents in the docket                    used in nonroad equipment, including
                                            we are making other minor amendments                                  are listed in the                    agricultural and construction
                                            to our regulations.                                                   index. Although listed in the index,                     equipment, or produce or import such
                                              We estimate that by 2030, this rule                                 some information is not publicly                         nonroad vehicles.
                                            will result in significantly reduced                                  available, such as CBI or other                             The following table gives some
                                            pollutant emissions from regulated                                    information whose disclosure is                          examples of entities that may have to
                                            engine and equipment sources,                                         restricted by statute. Certain other                     follow the regulations; however, since
                                            including estimated annual nationwide                                 material, such as copyrighted material,                  these are only examples, you should
                                            reductions of 604,000 tons of volatile                                will be publicly available only in hard                  carefully examine the regulations. Note
                                            organic hydrocarbon emissions, 132,200                                copy. Publicly available docket                          that we are adopting minor changes in
                                            tons of NOX emissions, and 5,500 tons                                 materials are available either                           the regulations that apply to a wide
                                            of directly-emitted particulate matter                                electronically in or                 range of products that may not be
                                            (PM2.5) emissions. These reductions                                   in hard copy at the ‘‘Control of                         reflected in the following table (see
                                            correspond to significant reductions in                               Emissions from Nonroad Spark-Ignition                    Section VIII). If you have questions, call
                                            the formation of ground-level ozone. We                               Engines, Vessels and Equipment’’                         the person listed in the FOR FURTHER
                                            also expect to see annual reductions of                               Docket. The docket is located in the                     INFORMATION CONTACT section above:

                                                                 Category                                                SIC codes b                            Examples of potentially regulated entities
                                                                                                            codes a

                                            Industry     ...............................................      333618               3519   Manufacturers    of   new engines.
                                            Industry     ...............................................      333111               3523   Manufacturers    of   farm machinery and equipment.
                                            Industry     ...............................................      333112               3524   Manufacturers    of   lawn and garden tractors (home).
                                            Industry     ...............................................      336612               3731   Manufacturers    of   marine vessels.
                                            Industry ...............................................          811112               7533   Commercial importers of vehicles and vehicle components.
                                                                                                              811198               7549
                                               a North    American Industry Classification System (NAICS).
                                               b Standard   Industrial Classification (SIC) system code.
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                                            Table of Contents                                                         C. What Regulations Currently Apply to                  G. Judicial Review
                                            I. Introduction                                                             Nonroad Engines or Vehicles?                       II. Public Health and Welfare Effects
                                               A. Overview                                                            D. Putting This Rule into Perspective                   A. Public Health Impacts
                                               B. Why Is EPA Taking This Action?                                      E. What Requirements Are We Adopting?                   B. Air Toxics
                                                                                                                      F. How Is This Document Organized?                      C. Carbon Monoxide

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                                   59035

                                            III. Sterndrive and Inboard Marine Engines                E. Executive Order 13132: Federalism                   exposure to CO, air toxics, and PM for
                                               A. Overview                                            F. Executive Order 13175: Consultation                 persons who operate or who work with
                                               B. Engines Covered by This Rule                           and Coordination With Indian Tribal                 or are otherwise active in close
                                               C. Exhaust Emission Standards                             Governments
                                               D. Test Procedures for Certification                   G. Executive Order 13045: Protection of
                                                                                                                                                             proximity to these engines. They will
                                               E. Additional Certification and Compliance                Children from Environmental Health and              also help address environmental
                                                  Provisions                                             Safety Risks                                        problems associated with Marine SI
                                               F. Small-Business Provisions                           H. Executive Order 12898: Federal Actions              engines and Small SI engines, such as
                                               G. Technological Feasibility                              to Address Environmental Justice in                 injury to vegetation and ecosystems and
                                            IV. Outboard and Personal Watercraft                         Minority Populations and Low-Income                 visibility impairment. These effects are
                                                  Engines                                                Populations.                                        described in more detail later in this
                                               A. Overview                                            I. Executive Order 13211: Actions that 

                                               B. Engines Covered by This Rule                                                                               document.
                                                                                                         Significantly Affect Energy Supply, 

                                               C. Final Exhaust Emission Standards                       Distribution, or Use 
                              B. Why Is EPA Taking This Action?
                                               D. Changes to OB/PWC Test Procedures                   J. National Technology Transfer 

                                               E. Additional Certification and Compliance                Advancement Act 
                                      Clean Air Act section 213(a)(1) directs
                                                  Provisions                                          K. Congressional Review Act                            us to study emissions from nonroad
                                               F. Other Adjustments to Regulatory 

                                      I. Introduction                                          engines and vehicles to determine,
                                               G. Small-Business Provisions                                                                                  among other things, whether these
                                               H. Technological Feasibility                         A. Overview                                              emissions ‘‘cause, or significantly
                                            V. Small SI Engines                                        This rule will reduce the mobile-                     contribute to, air pollution which may
                                               A. Overview                                          source contribution to air pollution in                  reasonably be anticipated to endanger
                                               B. Engines Covered by This Rule                      the United States. In particular, we are                 public health or welfare.’’ Section
                                               C. Final Requirements                                                                                         213(a)(2) further requires us to
                                                                                                    adopting standards that will require
                                               D. Testing Provisions                                                                                         determine whether emissions of CO,
                                               E. Certification and Compliance Provisions           manufacturers to substantially reduce
                                                  for Small SI Engines and Equipment                emissions from marine spark-ignition                     VOC, and NOX from all nonroad engines
                                               F. Small-Business Provisions                         engines and from nonroad spark-                          significantly contribute to ozone or CO
                                               G. Technological Feasibility                         ignition engines below 19 kW that are                    concentrations in more than one
                                            VI. Evaporative Emissions                               generally used in lawn and garden                        nonattainment area. If we determine
                                               A. Overview                                          applications.1 We refer to these as                      that emissions from all nonroad engines
                                               B. Fuel Systems Covered by This Rule                 Marine SI engines and Small SI engines,                  do contribute significantly to these
                                               C. Final Evaporative Emission Standards              respectively. The new emission                           nonattainment areas, section 213(a)(3)
                                               D. Emission Credit Programs                          standards are a continuation of the                      then requires us to establish emission
                                               E. Testing Requirements
                                               F. Certification and Compliance Provisions
                                                                                                    process of establishing standards for                    standards for classes or categories of
                                               G. Small-Business Provisions                         nonroad engines and vehicles as                          new nonroad engines and vehicles that
                                               H. Technological Feasibility                         required by Clean Air Act section 213.                   cause or contribute to such pollution.
                                            VII. Energy, Noise, and Safety                          All the nonroad engines subject to this                  We may also set emission standards
                                               A. Safety                                            rule are already regulated under existing                under section 213(a)(4) regulating any
                                               B. Noise                                             emission standards, except sterndrive                    other emissions from nonroad engines
                                               C. Energy                                            and inboard marine engines, which are                    that we find contribute significantly to
                                            VIII. Requirements Affecting Other Engine               subject to EPA emission standards for                    air pollution which may reasonably be
                                                  and Vehicle Categories                            the first time.                                          anticipated to endanger public health or
                                               A. State Preemption
                                               B. Certification Fees
                                                                                                       Nationwide, emissions from Marine                     welfare.
                                               C. Amendments to General Compliance                  SI engines and Small SI engines                             Specific statutory direction to set
                                                  Provisions in 40 CFR Part 1068                    contribute significantly to mobile source                standards for nonroad spark-ignition
                                               D. Amendments Related to Large SI 
                  air pollution. By 2030 without this final                engines comes from section 428(b) of
                                                  Engines (40 CFR Part 1048) 
                      rule these engines would account for                     the 2004 Consolidated Appropriations
                                               E. Amendments Related to Recreational                about 33 percent (1,287,000 tons) of
                                                  Vehicles (40 CFR Part 1051)                                                                                Act, which requires EPA to adopt
                                                                                                    mobile source volatile organic                           regulations under the Clean Air Act
                                               F. Amendments Related to Heavy-Duty                  hydrocarbon compounds (VOC)
                                                  Highway Engines (40 CFR Part 85)                                                                           ‘‘that shall contain standards to reduce
                                                                                                    emissions, 31 percent (15,605,000 tons)                  emissions from new nonroad spark-
                                               G. Amendments Related to Stationary
                                                                                                    of mobile source carbon monoxide (CO)
                                                  Spark-Ignition Engines (40 CFR Part 60)                                                                    ignition engines smaller than 50
                                               H. Amendments Related to Locomotive,                 emissions, 6 percent (311,300 tons) of
                                                                                                                                                             horsepower.’’ 2 As highlighted above
                                                  Marine, and Other Nonroad                         mobile source oxides of nitrogen (NOX)
                                                                                                                                                             and more fully described in Section II,
                                                  Compression-Ignition Engines (40 CFR              emissions, and 12 percent (44,000 tons)
                                                                                                                                                             these engines emit pollutants that
                                                  Parts 89, 92, 94, 1033, 1039, and 1042)           of mobile source particulate matter
                                            IX. Projected Impacts
                                                                                                                                                             contribute to ground-level ozone and
                                                                                                    (PM2.5) emissions. The new standards
                                               A. Emissions from Small Nonroad and 
                                                                         ambient CO levels. Human exposure to
                                                                                                    will reduce exposure to these emissions
                                                  Marine Spark-Ignition Engines 
                                                                            ozone and CO can cause serious
                                                                                                    and help avoid a range of adverse health
                                               B. Estimated Costs                                                                                            respiratory and cardiovascular
                                                                                                    effects associated with ambient ozone,
                                               C. Cost per Ton                                                                                               problems. Additionally, these emissions
                                               D. Air Quality Impact
                                                                                                    CO, and PM levels. In addition, the new
                                                                                                                                                             contribute to other serious
                                               E. Benefits                                          standards will help reduce acute
                                                                                                                                                             environmental degradation. This rule
                                               F. Economic Impact Analysis                                                                                   implements Congress’ mandate by
                                                                                                       1 Otto-cycle engines (referred to here as spark-
                                            X. Public Participation
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                                            XI. Statutory and Executive Order Reviews               ignition or SI engines) typically operate on gasoline,   adopting new requirements for
                                               A. Executive Order 12866: Regulatory 

                                                                                                    liquefied petroleum gas, or natural gas. Diesel-cycle    particular nonroad engines and
                                                                                                    engines, referred to simply as ‘‘diesel engines’’ in     equipment that are regulated as part of
                                                  Planning and Review 
                             this document, may also be referred to as
                                               B. Paperwork Reduction Act                           compression-ignition or CI engines. These engines
                                               C. Regulatory Flexibility Act                        typically operate on diesel fuel, but other fuels may      2 Public Law 108–199, Div G, Title IV, § 428(b),

                                               D. Unfunded Mandates Reform Act                      also be used.                                            118 Stat. 418 (January 23, 2004).

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                                            59036                Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            EPA’s overall nonroad emission control                                   regarding the stringency of standards,                                    Clean Air Act section 213(a)(1) in
                                            program.                                                                 the underlying expectations regarding                                     November 1991.3 On June 17, 1994, we
                                              We are adopting this rule under the                                    emission control technologies, the                                        made an affirmative determination
                                            procedural authority of section 307(d) of                                nature and extent of testing, and the                                     under section 213(a)(2) that nonroad
                                            the Clean Air Act.                                                       myriad details that comprise the                                          emissions are significant contributors to
                                            C. What Regulations Currently Apply to                                   implementation of a compliance                                            ozone or CO in more than one
                                            Nonroad Engines or Vehicles?                                             program.                                                                  nonattainment area (56 FR 31306). Since
                                                                                                                       At the same time, the requirements                                      then we have undertaken several
                                              EPA has been setting emission                                          and other regulatory provisions for each
                                            standards for nonroad engines and/or                                                                                                               rulemakings to set emission standards
                                                                                                                     engine category share many
                                            vehicles since Congress amended the                                                                                                                for the various categories of nonroad
                                                                                                                     characteristics. Each rulemaking under
                                            Clean Air Act in 1990 and included                                       section 213 sets technology-based                                         engines. Table I–1 highlights the
                                            section 213. These amendments have                                       standards consistent with the Clean Air                                   different engine or vehicle categories we
                                            led to a series of rulemakings to reduce                                 Act and requires annual certification                                     have established and the corresponding
                                            the air pollution from this widely                                       based on measured emission levels from                                    cites for emission standards and other
                                            varying set of products. In these                                        test engines or vehicles. As a result, the                                regulatory requirements. Table I–2
                                            rulemakings, we divided the broad                                        broader context of EPA’s nonroad                                          summarizes the series of EPA
                                            group of nonroad engines and vehicles                                    emission control programs demonstrates                                    rulemakings that have set new or
                                            into several different categories for                                    both strong similarities between this                                     revised emission standards for any of
                                            setting application-specific                                             rulemaking and the requirements                                           these nonroad engines or vehicles.
                                            requirements. Each category involves                                     adopted for other types of engines or                                     These actions are described in the
                                            many unique characteristics related to                                   vehicles and distinct differences as we                                   following sections, with additional
                                            the participating manufacturers,                                         take into account the unique nature of                                    discussion to explain why we are not
                                            technology, operating characteristics,                                   these engines and the companies that                                      adopting more stringent standards for
                                            sales volumes, and market dynamics.                                      produce them.                                                             certain types of nonroad spark-ignition
                                            Requirements for each category                                             We completed the Nonroad Engine                                         engines below 50 horsepower.
                                            therefore take on many unique features                                   and Vehicle Emission Study to satisfy

                                                                                    TABLE I–1: NONROAD ENGINE CATEGORIES FOR EPA EMISSION STANDARDS
                                                                              Engine categories                                                     CFR Cite for regulations establishing emission standards                                            to table

                                            1.   Locomotives engines ................................................................          40   CFR     Part 92 and 1033 ..........................................................           d,   l.
                                            2.   Marine diesel engines ..............................................................          40   CFR     Part 94 and 1042 ..........................................................           g,   i, j, l.
                                            3.   Other nonroad diesel engines ..................................................               40   CFR     Parts 89 and 1039 ........................................................            a,   e, k.
                                            4.   Marine SI engines a ..................................................................        40   CFR     Part 91 ...........................................................................   c.
                                            5.   Recreational vehicles ...............................................................         40   CFR     Part 1051 .......................................................................     i.
                                            6.   Small SI engines b ....................................................................       40   CFR     Part 90 ...........................................................................   b,   f, h.
                                            7.   Large SI engines b ....................................................................       40   CFR     Part 1048 .......................................................................     i.
                                              a The term ‘‘Marine SI,’’ used throughout this document, refers to all spark-ignition engines used to propel marine vessels. This includes out­
                                            board engines, personal watercraft engines, and sterndrive/inboard engines. See Section III for additional information.
                                              b The terms ‘‘Small SI’’ and ‘‘Large SI’’ are used throughout this document. All nonroad spark-ignition engines not covered by our programs for
                                            Marine SI engines or recreational vehicles are either Small SI engines or Large SI engines. Small SI engines include those engines with max­
                                            imum power at or below 19 kW, and Large SI engines include engines with maximum power above 19 kW.

                                                                                                     TABLE I–2: EPA’S RULEMAKINGS FOR NONROAD ENGINES
                                                                              Nonroad engines (categories and sub-categories)                                                                       Final rulemaking                              Date

                                            a. Land-based diesel engines ≥ 37 kW—Tier 1 .............................................................................
                         56   FR   31306      ................
   June 17, 1994.
                                            b. Small SI engines—Phase 1 ........................................................................................................
              60   FR   34581      ................
   July 3, 1995.
                                            c. Marine SI engines—outboard and personal watercraft ..............................................................
                              61   FR   52088      ................
   October 4, 1996.
                                            d. Locomotives ................................................................................................................................
   63   FR   18978      ................
   April 16, 1998.
                                            e. Land-based diesel engines—Tier 1 and Tier 2 for engines < 37 kW—Tier 2 and Tier 3 for                                                           63   FR   56968      ................
   October 23, 1998.
                                               engines ≥ 37 kW.
                                            f. Small SI engines (Nonhandheld)—Phase 2 ................................................................................
                        64   FR   15208      ................
   March 30, 1999.
                                            g. Commercial marine diesel < 30 liters per cylinder .....................................................................
                        64   FR   73300      ................
   December 29, 1999.
                                            h. Small SI engines (Handheld)—Phase 2 .....................................................................................
                      65   FR   24268      ................
   April 25, 2000.
                                            i. Recreational vehicles, Industrial spark-ignition engines > 19 kW, and Recreational marine                                                       67   FR   68242      ................
   November 8, 2002.
                                            j. Marine diesel engines ≥ 2.5 liters/cylinder ...................................................................................
                68 FR 9746 ..................
 February 28, 2003.
                                            k. Land-based diesel engines—Tier 4 ............................................................................................
                  69 FR 38958 ................
 June 29, 2004.
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                                            l. Locomotives and commercial marine diesel < 30 liters per cylinder ...........................................
                                  73 FR 37096 ................
 June 30, 2008.

                                              3 This study is available on EPA’s Web site at


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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                                  59037

                                            Small SI Engines                                        is appropriate to apply evaporative                   have information at this time on
                                               We have previously adopted emission                  emission standards to handheld engines                possible advances in technology beyond
                                            standards for nonroad spark-ignition                    similar to the standards we are adopting              Tier 2. We therefore believe the
                                            engines at or below 19 kW in two                        for the nonhandheld engines.                          evidence provided in the recently
                                            phases. The first phase of these                        Manufacturers can control evaporative                 promulgated rulemaking continues to
                                            standards introduced certification and                  emissions from handheld engines in a                  represent the best available information
                                            an initial level of emission standards for              way that has little or no impact on                   regarding the appropriate level of
                                            both handheld and nonhandheld                           exhaust emissions.                                    standards for these engines under
                                            engines. On March 30, 1999 we adopted                   Marine SI Engines                                     section 213 at this time. The California
                                            a second phase of standards for                                                                               Air Resources Board has adopted an
                                                                                                       On October 4, 1996 we adopted                      additional level of emission control for
                                            nonhandheld engines, including both
                                                                                                    emission standards for spark-ignition                 Large SI engines starting with the 2010
                                            Class I and Class II engines (64 FR
                                                                                                    outboard and personal watercraft                      model year. However, as described in
                                            15208).4 The Phase 2 regulations
                                                                                                    engines that have recently been fully                 Section I.D.1, their new standards do
                                            included a phase-in period that has
                                                                                                    phased in (61 FR 52088). We decided                   not increase overall stringency beyond
                                            recently been completed. These
                                                                                                    not to finalize emission standards for
                                            standards involved emission reductions                                                                        that reflected in the federal standards.
                                                                                                    sterndrive or inboard marine engines at
                                            based on improving engine calibrations                                                                        As a result, we believe it is
                                                                                                    that time. Uncontrolled emission levels
                                            to reduce exhaust emissions and added                                                                         inappropriate to adopt more stringent
                                                                                                    from sterndrive and inboard marine
                                            a requirement that emission standards                                                                         emission standards for these engines in
                                                                                                    engines were already significantly lower
                                            must be met over the engines’ entire                                                                          this rulemaking.
                                                                                                    than the outboard and personal
                                            useful life as defined in the regulations.                                                                       Note that the Large SI standards apply
                                                                                                    watercraft engines. We did, however,
                                            We believe catalyst technology has now                                                                        to nonroad spark-ignition engines above
                                                                                                    leave open the possibility of revisiting
                                            developed to the point that it can be                                                                         19 kW. However, we adopted a special
                                                                                                    the need for emission standards for
                                            applied to all nonhandheld Small SI                                                                           provision for engine families where
                                                                                                    sterndrive and inboard engines in the
                                            engines to reduce exhaust emissions.
                                                                                                    future. See Section III for further                   production engines have total
                                            Various emission control technologies
                                                                                                    discussion of the scope and background                displacement at or below 1000 cc and
                                            are similarly available to address the
                                                                                                    of past and current rulemakings for                   maximum power at or below 30 kW,
                                            different types of fuel evaporative
                                                                                                    these engines.                                        allowing these engine families to
                                            emissions we have identified.                              We believe existing technology can be
                                               For handheld engines, we adopted                                                                           instead certify to the applicable
                                                                                                    applied to all Marine SI engines to                   standards for Small SI engines. This rule
                                            Phase 2 exhaust emission standards in
                                                                                                    reduce emissions of harmful pollutants,               preserves this approach.
                                            April 25, 2000 (65 FR 24268). These
                                                                                                    including both exhaust and evaporative
                                            standards were based on the application                                                                       Recreational Vehicles
                                                                                                    emissions. Manufacturers of outboard
                                            of catalyst technology, with the
                                                                                                    and personal watercraft engines can                      We adopted exhaust and evaporative
                                            expectation that manufacturers would
                                                                                                    continue the trend of producing four-                 emission standards for recreational
                                            have to make considerable investments
                                                                                                    stroke engines and advanced-technology
                                            to modify their engine designs and                                                                            vehicles in our November 8, 2002 final
                                                                                                    two-stroke engines to further reduce
                                            production processes. A technology                                                                            rule (67 FR 68242). These standards
                                                                                                    emissions. For sterndrive/inboard
                                            review we completed in 2003 indicated                                                                         apply to all-terrain vehicles, off-
                                                                                                    engines, manufacturers can add
                                            that manufacturers were making                                                                                highway motorcycles, and
                                                                                                    technologies, such as fuel injection and
                                            progress toward compliance, but that                                                                          snowmobiles.6 These exhaust emission
                                                                                                    aftertreatment, that can safely and
                                            additional implementation flexibility                                                                         standards were fully phased in starting
                                            was needed if manufacturers were to                     substantially improve the engines’
                                                                                                                                                          with the 2007 model year. The
                                            fully comply with the regulations by                    emission control capabilities.
                                                                                                                                                          evaporative emission standards apply
                                            2010. This finding and a change in the                  Large SI Engines                                      starting with the 2008 model year.
                                            rule were published in the Federal                         We adopted emission standards for                     Recreational vehicles will soon be
                                            Register on January 12, 2004 (69 FR                     Large SI engines on November 8, 2002                  subject to permeation requirements that
                                            1824). At this point, we have no                        (67 FR 68242). This includes Tier 1                   are very similar to the requirements
                                            information to suggest that                             standards for 2004 through 2006 model                 included in this rulemaking. We have
                                            manufacturers can uniformly apply new                   years and Tier 2 standards starting with              also learned more about controlling
                                            technology or make design                               2007 model year engines. Manufacturers                running losses and diffusion emissions
                                            improvements to reduce exhaust                          are today facing a considerable                       that may eventually lead us to propose
                                            emissions below the Phase 2 levels. We                                                                        comparable standards for recreational
                                                                                                    challenge to comply with the Tier 2
                                            therefore believe the Phase 2 standards                                                                       vehicles. Considering these new
                                                                                                    standards, which are already
                                            continue to represent the greatest degree
                                                                                                    substantially more stringent than any of              requirements for recreational vehicles in
                                            of emission reduction achievable for
                                                                                                    the standards for the other engine                    a later rulemaking would give us
                                            these engines.5 However, we believe it
                                                                                                    categories subject to this final rule. The            additional time to collect information to
                                               4 Handheld engines generally include those
                                                                                                    Tier 2 standards also include                         better understand the feasibility, costs,
                                            engines for which the operator holds or supports        evaporative emission standards, new                   and benefits of applying these
                                            the equipment during operation; nonhandheld             transient test procedures, additional                 requirements to recreational vehicles.
                                            engines are Small SI engines that are not handheld      exhaust emission standards to address
                                            engines (see § 1054.801). Class I refers to                                                                      The following sections describe the
                                            nonhandheld engines with displacement below 225
                                                                                                    off-cycle emissions, and diagnostic                   state of technology and regulatory
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                                            cc; Class II refers to larger nonhandheld engines.      requirements. Stringent standards for                 requirements for the different types of
                                               5 Note that we refer to the handheld exhaust         this category of engines, and in                      recreational vehicles.
                                            emission standards in 40 CFR part 1054 as Phase         particular engines between 25 and 50
                                            3 standards. This is intended to maintain consistent
                                            terminology with the comparable standards in
                                                                                                    horsepower (19 to 37 kW), have been                     6 Note that we treat certain high-speed off-road

                                            California rather than indicating an increase in        completed in the recent past, and are                 utility vehicles as all-terrain vehicles (see 40 CFR
                                            stringency.                                             currently being implemented. We do not                part 1051).

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                                            59038            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            All-Terrain Vehicles                                    rated above 50 hp and there is still a                of these is described in more detail
                                               EPA’s initial round of exhaust                       fundamental need for time to pass to                  below.
                                            emission standards was fully                            allow us to assess the success of four-
                                                                                                                                                          State Initiatives
                                            implemented starting with the 2007                      stroke engine technology in the
                                            model year. The regulations for all-                    marketplace.7 This is an important                      Clean Air Act section 209 prohibits
                                            terrain vehicles (ATV) specify testing                  aspect of the assessment we need to                   California and other states from setting
                                            based on a chassis-based transient                      conduct with regard to the Phase 3                    emission standards for new motor
                                            procedure. However, we permit                           emission standards. We believe it is best             vehicles and new motor vehicle engines,
                                            manufacturers on an interim basis to                    to address this in a separate rulemaking              but authorizes EPA to waive this
                                            optionally use a steady-state engine-                   and we have initiated that effort to                  prohibition for California, in which case
                                            based procedure. We recently                            evaluate the appropriate long-term                    other states may adopt California’s
                                            completed a change in the regulations to                emission standards for snowmobiles.                   standards. Similar preemption and
                                            extend this allowance from 2009                                                                               waiver provisions apply for emission
                                                                                                    Nonroad Diesel Engines
                                            through 2014, after which                                                                                     standards for nonroad engines and
                                            manufacturers must certify all their                       The 2004 Consolidated                              vehicles, whether new or in-use.
                                            ATVs based on the chassis-based                         Appropriations Act providing the                      However for new locomotives, new
                                            transient test procedure that applies for               specific statutory direction for this                 engines used in locomotives, and new
                                            off-highway motorcycles (72 FR 20730,                   rulemaking focuses on nonroad spark-                  engines used in farm or construction
                                            April 26, 2007). This change does not                   ignition engines. Nonroad diesel                      equipment with maximum power below
                                            represent an increase in stringency, but                engines are therefore not included                    130 kW, California and other states are
                                            manufacturers will be taking time to                    within the scope of that Congressional                preempted and there is no provision for
                                            make the transition to the different test               mandate. However, we have gone                        a waiver of preemption. In addition, in
                                            procedure. We expect that there will be                 through several rulemakings to set                    section 428 of the 2004 Consolidated
                                            a good potential to apply further                       standards for these engines under the                 Appropriations Act, Congress further
                                            emission controls on these engines.                     broader authority of Clean Air Act                    precluded other states from adopting
                                            However, we do not have information at                  section 213. In particular, we have                   new California standards for nonroad
                                            this time on possible advances in                       divided nonroad diesel engines into                   spark-ignition engines below 50
                                            technology beyond what is required for                  three groups for setting emission                     horsepower. In addition, the
                                            the current standards.                                  standards. We adopted a series of                     amendment required that we
                                                                                                    standards for locomotives on April 16,                specifically address the safety
                                            Off-Highway Motorcycles                                 1998, including requirements to certify               implications of any California standards
                                               For off-highway motorcycles,                         engines to emission standards when                    for these engines before approving a
                                            manufacturers are in many cases making                  they are rebuilt (63 FR 18978). We also               waiver of federal preemption. We are
                                            a substantial transition to move away                   adopted emission standards for marine                 codifying these preemption changes in
                                            from two-stroke engines in favor of four-               diesel engines over several different                 this rule.
                                            stroke engines. This transition is now                  rulemakings, as described in Table I–2.                 The California Air Resources Board
                                            underway. While it may eventually be                    These included separate actions for                   (California ARB) has adopted
                                            appropriate to apply aftertreatment or                  engines below 37 kW, engines installed                requirements for five groups of nonroad
                                            other additional emission control                       in oceangoing vessels, engines installed              engines: (1) Diesel- and Otto-cycle small
                                            technologies to off-highway                             in commercial vessels involved in                     off-road engines rated under 19 kW; (2)
                                            motorcycles, we need more time for this                 inland and coastal waterways, and                     spark-ignition engines used for marine
                                            transition to be completed and to assess                engines installed in recreational vessels.            propulsion; (3) land-based nonroad
                                            the success of aftertreatment                           We recently adopted a new round of                    recreational engines, including those
                                            technologies such as catalysts on similar               more stringent emission standards for                 used in all-terrain vehicles, off-highway
                                            applications such as highway                            both locomotives and marine diesel                    motorcycles, go-carts, and other similar
                                            motorcycles. As EPA and manufacturers                   engines that will require widespread use              vehicles; (4) new nonroad spark-ignition
                                            learn more in implementing emission                     of aftertreatment technology (73 FR                   engines rated over 19 kW not used in
                                            standards, we expect to be able to better               37096, June 30, 2008).                                recreational applications; and (5) new
                                            judge the potential for broadly applying                   Finally, all other nonroad diesel                  land-based nonroad diesel engines rated
                                            new technology to achieve further                       engines are grouped together for EPA’s                over 130 kW. They have also approved
                                            emission reductions from off-highway                    emission standards. We have adopted                   a voluntary registration and control
                                            motorcycles.                                            multiple tiers of increasingly stringent              program for existing portable
                                                                                                    standards in three separate rulemakings,              equipment.
                                            Snowmobiles                                             as described in Table I–2. We most                      In the 1990s California ARB adopted
                                              In our November 8, 2002 final rule we                 recently adopted Tier 4 standards based               Tier 1 and Tier 2 standards for Small SI
                                            set three phases of exhaust emission                    on the use of ultra low-sulfur diesel fuel            engines consistent with the federal
                                            standards for snowmobiles (67 FR                        and the application of exhaust                        requirements. In 2003, they moved
                                            68242). Environmental and industry                      aftertreatment technology (69 FR 38958,               beyond the federal program by adopting
                                            groups challenged the third phase of                    June 29, 2004).                                       exhaust HC+NOX emission standards of
                                            these standards. The court decision                                                                           10 g/kW-hr for Class I engines starting
                                                                                                    D. Putting This Rule into Perspective
                                            upheld much of EPA’s reasoning for the                                                                        in the 2007 model year and 8 g/kW-hr
                                            standards, but vacated the NOX standard                    Most manufacturers that will be                    for Class II engines starting in the 2008
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                                            and remanded the CO and HC standards                    subject to this rulemaking are also                   model year. In the same rule they
                                            to clarify the analysis and evidence                    affected by regulatory developments in                adopted evaporative emission standards
                                            upon which the standards are based.                     California and in other countries. Each               for nonhandheld equipment, requiring
                                            See Bluewater Network, et al. v. EPA,                                                                         control of fuel tank permeation, fuel line
                                            370 F 3d 1 (D.C. Cir. 2004). A large                      7 Only about 3 percent of snowmobiles are rated     permeation, diurnal emissions, and
                                            majority of snowmobile engines are                      below 50 horsepower.                                  running losses.

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                                                              Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                                                            59039

                                              California ARB has adopted two tiers                        requirements also included an                                  emission standards are to be met by all
                                            of exhaust emission standards for                             additional level of emission control for                       handheld and nonhandheld engines by
                                            outboard and personal watercraft                              Large SI engines starting with the 2010                        24 months after entry into force of the
                                            engines beyond EPA’s original                                 model year. However, their 2010                                Directive (as noted in a December 9,
                                            standards. The most recent standards,                         standards do not increase overall                              2002 amendment to Directive 97/68/
                                            which apply starting in 2008, require                         stringency beyond that reflected in the                        EC). The Stage I emission standards are
                                            HC+NOX emission levels as low as 16 g/                        federal standards. Rather, they aim to                         similar to the U.S. EPA’s Phase 1
                                            kW-hr. For sterndrive and inboard                             achieve reductions in HC+NOX                                   emission standards for handheld and
                                            engines, California ARB has adopted a                         emissions by removing the flexibility                          nonhandheld engines. The Stage II
                                            5 g/kW-hr HC+NOX emission standard                            incorporated into the federal standards                        emission standards are implemented
                                            for 2008 and later model year engines,                        allowing manufacturers to have higher                          over time for the various handheld and
                                            with testing underway to confirm the                          HC+NOX emissions by certifying to a                            nonhandheld engine classes from 2005
                                            feasibility of standards. California ARB’s                    more stringent CO standard.                                    to 2009 with handheld engines at or
                                            marine programs include no standards                                                                                         above 50 cc on August 1, 2008. The
                                            for exhaust CO emissions or evaporative                       Actions in Other Countries
                                                                                                                                                                         Stage II emission standards are similar
                                            emissions.                                                       While the new emission standards                            to EPA’s Phase 2 emission standards for
                                               The California ARB emission                                will apply only to engines sold in the                         handheld and nonhandheld engines. Six
                                            standards for recreational vehicles have                      United States, we are aware that                               months after these dates Member States
                                            a different form than the comparable                          manufacturers in many cases are selling                        must require that engines placed on the
                                            EPA standards but are roughly                                 the same products into other countries.                        market meet the requirements of the
                                            equivalent in stringency. The California                      To the extent that we have the same
                                                                                                                                                                         Directive, whether or not they are
                                            standards include no standards for                            emission standards as other countries,
                                                                                                                                                                         already installed in machinery.
                                            controlling evaporative emissions.                            manufacturers can contribute to
                                            Another important difference between                          reducing air emissions without being                             The European Commission has
                                            the two programs is California ARB’s                          burdened by the costs associated with                          adopted emission standards for
                                            reliance on a provision allowing                              meeting differing or inconsistent                              recreational marine engines, including
                                            noncompliant vehicles to be used in                           regulatory requirements. The following                         both diesel and gasoline engines. These
                                            certain areas that are less                                   discussion describes our understanding                         requirements apply to all new engines
                                            environmentally sensitive as long as                          of the status of emission standards in                         sold in member countries and began in
                                            they have a specified red sticker for                         countries outside the United States.                           2006 for four-stroke engines and in 2007
                                            identifying their lack of emission                               Regulations for spark ignition engines                      for two-stroke engines. Table I–3
                                            controls to prevent them from operating                       in handheld and nonhandheld                                    presents the European standards for
                                            in other areas.                                               equipment are included in the                                  diesel and gasoline recreational marine
                                               California ARB in 1998 adopted                             ‘‘Directive 97/68/EC of the European                           engines. The numerical emission
                                            requirements that apply to new nonroad                        Parliament and of the Council of 16                            standards for NOX are based on the
                                            engines rated over 25 hp produced for                         December 1997 on the approximation of                          applicable standard from MARPOL
                                            California, with standards phasing in                         the laws of the Member States relating                         Annex VI for marine diesel engines (See
                                            from 2001 through 2004. Texas has                             to measures against the emission of                            Table I–3). The European standards are
                                            adopted these initial California ARB                          gaseous and particulate pollutants from                        roughly equivalent to the nonroad diesel
                                            emission standards statewide starting in                      internal combustion engines to be                              Tier 1 emission standards for HC and
                                            2004. More recently, California ARB                           installed in non-road mobile machinery                         CO. Emission measurements under the
                                            adopted exhaust emission standards and                        (OJ L 59, 27.2.1998, p. 1)’’, as amended                       European standards rely on the ISO D2
                                            new evaporative emission standards for                        by ‘‘Directive 2002/88/EC of the                               duty cycle for constant-speed engines
                                            these engines, consistent with EPA’s                          European Parliament and of the Council                         and the ISO E5 duty cycle for other
                                            2007 model year standards. Their new                          of 9 December 2002.’’ The Stage I                              engines.

                                                                TABLE I–3: EUROPEAN EMISSION STANDARDS FOR RECREATIONAL MARINE ENGINES (g/kW-hr)
                                                             Engine type                                                HC                               NOX                                  CO                                   PM

                                            Two-Stroke Spark-Ignition ...................      30 +   100/P 0.75 .....................................      10.0   150 + 600/P .........................................                 —
                                            Four-Stroke Spark-Ignition ...................     6 + 50/P 0.75 .........................................      15.0   150 + 600/P .........................................                 —
                                            Compression-Ignition ...........................   1.5 + 2/P 0.5 .........................................       9.8   5.0 ........................................................         1.0
                                               Note: P = rated power in kilowatts (kW).

                                            E. What Requirements Are We                                   meeting warranty requirements. The                             2008 and later model year engines. The
                                            Adopting?                                                     following sections provide a brief                             CO emission standard is 300 g/kW-hr
                                                                                                          summary of the new requirements in                             for engines with maximum engine
                                              EPA’s emission control provisions                           this rulemaking. See the later sections                        power above 40 kW; the standard
                                            require engine, vessel and equipment                          for a full discussion of the rule.                             increases as a function of maximum
                                            manufacturers to design and produce                                                                                          engine power for smaller engines. We
                                            their products to meet the emission                           Marine SI Engines and Vessels
                                                                                                                                                                         expect manufacturers to meet these
                                            standards we adopt. To ensure that
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                                                                                                            We are adopting a more stringent                             standards with improved fueling
                                            engines and fuel systems meet the                             level of emission standards for outboard                       systems and other in-cylinder controls.
                                            expected level of emission control, we                        and personal watercraft engines starting                       We are not pursuing catalyst-based
                                            also require compliance with a variety                        with the 2010 model year. The HC+NOX                           emission standards for outboard and
                                            of additional requirements, such as                           emission standards are the same as                             personal watercraft engines. As
                                            certification, labeling engines, and                          those adopted by California ARB for                            discussed below, the application of

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                                            59040            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            catalyst-based standards to the marine                     We are adopting new standards to                   each reader to focus on the material of
                                            environment creates special technology                  control evaporative emissions for all                 particular interest. The Air Quality
                                            challenges that must be addressed.                      Marine SI vessels. The new standards                  discussion in Section II, however, is
                                            Unlike the sterndrive/inboard engines                   include requirements to control fuel                  general in nature and applies to all the
                                            discussed in the next paragraph,                        tank permeation, fuel line permeation,                categories subject to the rule.
                                            outboard and personal watercraft                        and diurnal emissions, including                        The next several sections describe the
                                            engines are not built from automotive                   provisions to ensure that refueling                   provisions that apply for Small SI
                                            engine blocks and it is not                             emissions do not increase.                            engines and equipment and Marine SI
                                            straightforward to apply the                               We are including these new                         engines and vessels. Sections III through
                                            fundamental engine modifications, fuel                  regulations for Marine SI engines in 40               V describe the new requirements related
                                            system upgrades, and other engine                       CFR part 1045 rather than in the current              to exhaust emission standards for each
                                            control modifications needed to get                     regulations in 40 CFR part 91. This new               of the affected engine categories,
                                            acceptable catalyst performance. This                   part allows us to improve the clarity of              including standards, effective dates,
                                            rule is an appropriate next step in the                 regulatory requirements and update our                testing information, and other specific
                                            evolution of technology-based standards                 regulatory compliance program to be                   requirements. Section VI details the new
                                            for outboard and personal watercraft                    consistent with the provisions we have                requirements related to evaporative
                                            engines as they are likely to lead to the               recently adopted for other nonroad                    emissions for all categories. Section VII
                                            elimination of carbureted two-stroke                    programs. We are also making a variety                discusses how we took energy, noise,
                                            engines in favor of four-stroke engines                 of changes to 40 CFR part 91 to make                  and safety factors into consideration for
                                            or direct-injection two-stroke engines                  minor adjustments to the current                      the new standards.
                                            and to encourage the fuel system                        regulations and to prepare for the                      Section VIII describes a variety of
                                            upgrades and related engine                             transition to 40 CFR part 1045.                       provisions that affect other categories of
                                            modifications needed to achieve the                     Small SI Engines and Equipment                        engines besides those that are the
                                            required reductions and to potentially                                                                        primary subject of this rule. This
                                            set the stage for more stringent controls                 We are adopting HC+NOX exhaust                      includes the following changes:
                                            in the future.                                          emission standards of 10.0 g/kW-hr for                  • We are reorganizing the regulatory
                                                                                                    Class I engines starting in the 2012                  language related to preemption of state
                                               We are adopting new exhaust
                                                                                                    model year and 8.0 g/kW-hr for Class II               standards and to clarify certain
                                            emission standards for sterndrive and
                                                                                                    engines starting in the 2011 model year.              provisions.
                                            inboard marine engines. The standards
                                                                                                    For both classes of nonhandheld
                                            are 5.0 g/kW-hr for HC+NOX and 75.0 g/                                                                          • We are incorporating new
                                                                                                    engines, we are maintaining the existing
                                            kW-hr for CO starting with the 2010                                                                           provisions related to certification fees
                                                                                                    CO standard of 610 g/kW-hr. We expect
                                            model year. We expect manufacturers to                                                                        for newly regulated products covered by
                                                                                                    manufacturers to meet these standards
                                            meet these standards with three-way                                                                           this rule. This involves some
                                                                                                    by improving engine combustion and
                                            catalysts and closed-loop fuel injection.                                                                     restructuring of the regulatory language.
                                                                                                    adding catalysts. These standards are
                                            To ensure proper functioning of these                                                                         We are also adopting various technical
                                                                                                    consistent with the requirements
                                            emission control systems in use, we will                                                                      amendments, such as identifying an
                                                                                                    recently adopted by California ARB.
                                            require engines to have a diagnostic                                                                          additional payment method, that apply
                                                                                                      For spark-ignition engines used in
                                            system for detecting a failure in the                                                                         broadly to our certification programs.
                                                                                                    marine generators, we are adopting a
                                            emission control system. For sterndrive
                                                                                                    more stringent Phase 3 CO emission                      • We are modifying 40 CFR part 1068
                                            and inboard marine engines above 373                                                                          to clarify when engines are subject to
                                                                                                    standard of 5.0 g/kW-hr. This applies
                                            kW with high-performance                                                                                      standards. This includes several new
                                                                                                    equally to all sizes of engines subject to
                                            characteristics (generally referred to as                                                                     provisions to address special cases for
                                                                                                    the Small SI standards.
                                            ‘‘SD/I high-performance engines’’), we                    We are adopting new evaporative                     partially complete engines.
                                            are adopting less stringent emission                    emission standards for both handheld                    • We are also modifying part 1068 to
                                            standards that reflect their limited                    and nonhandheld engines. The new                      clarify how the provisions apply with
                                            ability to control emissions with                       standards include requirements to                     respect to evaporative emission
                                            catalysts. The HC+NOX standard is 16 g/                 control permeation from fuel tanks and                standards and we are adopting various
                                            kW-hr in for engines at or below 485 kW                 fuel lines. For nonhandheld engines we                technical amendments. These changes
                                            and 22 g/kW-hr for bigger engines. The                  will also require control of running loss             apply to all types of nonroad engines
                                            CO standard for all SD/I high-                          emissions.                                            that are subject to the provisions of part
                                            performance engines is 350 g/kW-hr.                       We are drafting the new regulations                 1068.
                                            Manufacturers of these engines must                     for Small SI engines from 40 CFR part                   • We are adopting several technical
                                            meet emission standards without                         90 rather than changing the current                   amendments for other categories of
                                            generating or using emission credits. We                regulations in 40 CFR part 90. This new               nonroad engines and vehicles, largely to
                                            also include a variety of other special                 part will allow us to improve the clarity             maintain consistency across programs
                                            provisions for these engines to reflect                 of regulatory requirements and update                 for different categories of engines and
                                            unique operating characteristics.                       our regulatory compliance program to                  vehicles.
                                               The emission standards described                     be consistent with the provisions we                    • We are amending provisions related
                                            above relate to engine operation over a                 have recently adopted for other nonroad               to delegated assembly. The new
                                            prescribed duty cycle for testing in the                programs.                                             approach is to adopt a universal set of
                                            laboratory. We are also adopting not-to-                                                                      requirements in § 1068.261 that applies
                                            exceed (NTE) standards that establish                   F. How Is This Document Organized?                    uniformly to heavy-duty highway
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                                            emission limits when engines operate                      Many readers may be interested only                 engines and nonroad engines.
                                            under normal speed-load combinations                    in certain aspects of the rule since it                 • We are clarifying that the new
                                            that are not included in the duty cycles                covers a broad range of engines and                   exhaust and evaporative emission
                                            for the other engine standards (the NTE                 equipment that vary in design and use.                standards for Small SI engines also
                                            standards do not apply to SD/I high-                    We have therefore attempted to organize               apply to the comparable stationary
                                            performance engines).                                   this information in a way that allows                 engines.

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                             59041

                                              Section IX summarizes the projected                   impairment and other welfare and                      parts per million (ppm), expressed to
                                            impacts and benefits of this rule.                      environmental effects.                                three decimal places. With regard to the
                                            Finally, Sections X and XI summarize                      This section summarizes the general                 secondary standard for ozone, EPA has
                                            the primary public comments received                    health and welfare effects of these                   revised the current 8-hour standard by
                                            and describe how we satisfy our various                 emissions. Interested readers are                     making it identical to the revised
                                            administrative requirements.                            encouraged to refer to the Final RIA for              primary standard.
                                                                                                    more in-depth discussions.
                                            G. Judicial Review                                                                                            Health Effects of Ozone
                                                                                                    A. Public Health Impacts
                                               Under section 307(b)(1) of the Clean                                                                          The health and welfare effects of
                                            Air Act (CAA), judicial review of these                 Ozone                                                 ozone are well documented and are
                                            final rules is available only by filing a                 The Small SI engine and Marine SI                   assessed in EPA’s 2006 ozone Air
                                            petition for review in the U.S. Court of                engine standards finalized in this action             Quality Criteria Document (ozone
                                            Appeals for the District of Columbia                    will result in reductions of volatile                 AQCD) and EPA Staff Paper.9, 10 Ozone
                                            Circuit by December 8, 2008. Under                      organic compounds (VOC), of which HC                  can irritate the respiratory system,
                                            section 307(b)(2) of the CAA, the                       are a subset, and NOX emissions. VOC                  causing coughing, throat irritation, and/
                                            requirements established by these final                 and NOX contribute to the formation of                or uncomfortable sensation in the chest.
                                            rules may not be challenged separately                  ground-level ozone pollution or smog.                 Ozone can reduce lung function and
                                            in any civil or criminal proceedings                    People in many areas across the U.S.                  make it more difficult to breathe deeply;
                                            brought by EPA to enforce these                         continue to be exposed to unhealthy                   breathing may also become more rapid
                                            requirements.                                           levels of ambient ozone.                              and shallow than normal, thereby
                                               Section 307(d)(7)(B) of the CAA                                                                            limiting a person’s activity. Ozone can
                                                                                                    Background                                            also aggravate asthma, leading to more
                                            further provides that ‘‘[o]nly an
                                            objection to a rule or procedure which                     Ground-level ozone pollution is                    asthma attacks that require medical
                                            was raised with reasonable specificity                  typically formed by the reaction of VOC               attention and/or the use of additional
                                            during the period for public comment                    and NOX in the lower atmosphere in the                medication. In addition, there is
                                            (including any public hearing) may be                   presence of heat and sunlight. These                  suggestive evidence of a contribution of
                                            raised during judicial review.’’ This                   pollutants, often referred to as ozone                ozone to cardiovascular-related
                                            section also provides a mechanism for                   precursors, are emitted by many types of              morbidity and highly suggestive
                                            us to convene a proceeding for                          pollution sources, such as highway and                evidence that short-term ozone exposure
                                            reconsideration, ‘‘[i]f the person raising              nonroad motor vehicles and engines,                   directly or indirectly contributes to non-
                                            an objection can demonstrate to the EPA                 power plants, chemical plants,                        accidental and cardiopulmonary-related
                                            that it was impracticable to raise such                 refineries, makers of consumer and                    mortality, but additional research is
                                            objection within [the period for public                 commercial products, industrial                       needed to clarify the underlying
                                            comment] or if the grounds for such                     facilities, and smaller area sources.                 mechanisms causing these effects. In a
                                            objection arose after the period for                       The science of ozone formation,                    recent report on the estimation of ozone-
                                            public comment (but within the time                     transport, and accumulation is                        related premature mortality published
                                            specified for judicial review) and if such              complex.8 Ground-level ozone is                       by the National Research Council (NRC),
                                            objection is of central relevance to the                produced and destroyed in a cyclical set              a panel of experts and reviewers
                                            outcome of the rule.’’ Any person                       of chemical reactions, many of which                  concluded that short-term exposure to
                                            seeking to make such a demonstration to                 are sensitive to temperature and                      ambient ozone is likely to contribute to
                                            us should submit a Petition for                         sunlight. When ambient temperatures                   premature deaths and that ozone-related
                                            Reconsideration to the Office of the                    and sunlight levels remain high for                   mortality should be included in
                                            Administrator, U.S. EPA, Room 3000,                     several days and the air is relatively                estimates of the health benefits of
                                            Ariel Rios Building, 1200 Pennsylvania                  stagnant, ozone and its precursors can                reducing ozone exposure.11 Animal
                                            Ave., NW., Washington, DC 20460, with                   build up and result in more ozone than                toxicological evidence indicates that
                                            a copy to both the person(s) listed in the              typically occurs on a single high-                    with repeated exposure, ozone can
                                            preceding FOR FURTHER INFORMATION                       temperature day. Ozone can be                         inflame and damage the lining of the
                                            CONTACT section and the Associate
                                                                                                    transported hundreds of miles                         lungs, which may lead to permanent
                                            General Counsel for the Air and                         downwind of precursor emissions,                      changes in lung tissue and irreversible
                                            Radiation Law Office, Office of General                 resulting in elevated ozone levels even               reductions in lung function. People who
                                            Counsel (Mail Code 2344A), U.S. EPA,                    in areas with low local VOC or NOX                    are more susceptible to effects
                                            1200 Pennsylvania Ave., NW.,                            emissions.
                                                                                                       EPA has recently amended the ozone                    9 U.S. EPA Air Quality Criteria for Ozone and
                                            Washington, DC 20460.
                                                                                                    NAAQS (73 FR 16436, March 27, 2008).                  Related Photochemical Oxidants (Final). U.S.
                                            II. Public Health and Welfare Effects                   The final ozone NAAQS rule addresses                  Environmental Protection Agency, Washington,
                                                                                                                                                          DC., EPA 600/R–05/004aF–cF, 2006. This document
                                                                                                    revisions to the primary and secondary                is available in Docket EPA–HQ–OAR–2003–0190.
                                              The engines and fuel systems subject                  NAAQS for ozone to provide increased                  This document may be accessed electronically at:
                                            to this rule generate emissions of                      protection of public health and welfare,    
                                            hydrocarbons (HC), nitrogen oxides                      respectively. With regard to the primary              o3_cr_cd.html.
                                            (NOX), particulate matter (PM) and                      standard for ozone, EPA has revised the
                                                                                                                                                             10 U.S. EPA (2007) Review of the National

                                            carbon monoxide (CO) that contribute to                 level of the 8-hour standard to 0.075
                                                                                                                                                          Ambient Air Quality Standards for Ozone, Policy
                                            nonattainment of the National Ambient                                                                         Assessment of Scientific and Technical
                                                                                                                                                          Information. OAQPS Staff Paper.EPA–452/R–07–
                                            Air Quality Standards (NAAQS) for                         8 U.S. EPA Air Quality Criteria for Ozone and       003. This document is available in Docket EPA–
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                                            ozone, PM and CO. These engines and                     Related Photochemical Oxidants (Final). U.S.          HQ–OAR–2003–0190. This document is available
                                            fuel systems also emit hazardous air                    Environmental Protection Agency, Washington,          electronically at:
                                            pollutants (air toxics) that are associated             D.C., EPA 600/R–05/004aF-cF, 2006. This               standards/ozone/s_o3_cr_sp.html.
                                                                                                    document is available in Docket EPA-HQ-OAR–              11 National Research Council (NRC), 2008.
                                            with a host of adverse health effects.                  2003–0190. This document may be accessed              Estimating Mortality Risk Reduction and Economic
                                            Emissions from these engines and fuel                   electronically at:      Benefits from Controlling Ozone Air Pollution. The
                                            systems also contribute to visibility                   standards/ozone/s_o3_cr_cd.html.                      National Academies Press: Washington, DC.

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                                            59042               Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            associated with exposure to ozone can                                      morbidity and non-accidental and                                              resulting in a loss or reduction in
                                            include children, the elderly, and                                         cardiopulmonary mortality.                                                    associated ecosystem goods and
                                            individuals with respiratory disease                                                                                                                     services. Lastly, visible ozone injury to
                                                                                                                       Plant and Ecosystem Effects of Ozone
                                            such as asthma. Those with greater                                                                                                                       leaves can result in a loss of aesthetic
                                            exposures to ozone, for instance due to                                       Elevated ozone levels contribute to                                        value in areas of special scenic
                                            time spent outdoors (e.g., children and                                    environmental effects, with impacts to                                        significance like national parks and
                                            outdoor workers), are also of particular                                   plants and ecosystems being of most                                           wilderness areas. The final 2006 Criteria
                                            concern.                                                                   concern. Ozone can produce both acute                                         Document presents more detailed
                                                                                                                       and chronic injury in sensitive species                                       information on ozone effects on
                                              The recent ozone AQCD also                                               depending on the concentration level                                          vegetation and ecosystems.
                                            examined relevant new scientific                                           and the duration of the exposure. Ozone
                                            information that has emerged in the past                                   effects also tend to accumulate over the                                      Current and Projected Ozone Levels
                                            decade, including the impact of ozone                                      growing season of the plant, so that even                                        Ozone concentrations exceeding the
                                            exposure on such health effects as                                         low concentrations experienced for a                                          level of the 1997 8-hour ozone NAAQS
                                            changes in lung structure and                                              longer duration have the potential to                                         occur over wide geographic areas,
                                            biochemistry, inflammation of the                                          create chronic stress on vegetation.                                          including most of the nation’s major
                                            lungs, exacerbation and causation of                                       Ozone damage to plants includes visible                                       population centers.12 As of March 12,
                                            asthma, respiratory illness-related                                        injury to leaves and a reduction in food                                      2008, there were approximately 140
                                            school absence, hospital admissions and                                    production through impaired                                                   million people living in 72 areas (which
                                            premature mortality. Animal                                                photosynthesis, both of which can lead                                        include all or part of 337 counties)
                                            toxicological studies have suggested                                       to reduced crop yields, forestry                                              designated as not in attainment with the
                                            potential interactions between ozone                                       production, and use of sensitive                                              1997 8-hour ozone NAAQS.13 These
                                            and PM with increased responses                                            ornamentals in landscaping. In addition,                                      numbers do not include the people
                                            observed to mixtures of the two                                            the reduced food production in plants                                         living in areas where there is a future
                                            pollutants compared to either ozone or                                     and subsequent reduced root growth                                            risk of failing to maintain or attain the
                                            PM alone. The respiratory morbidity                                        and storage below ground, can result in                                       8-hour ozone NAAQS. The 1997 ozone
                                            observed in animal studies along with                                      other, more subtle plant and ecosystems                                       NAAQS was recently revised and the
                                            the evidence from epidemiologic studies                                    impacts. These include increased                                              2008 ozone NAAQS was final on March
                                            supports a causal relationship between                                     susceptibility of plants to insect attack,                                    12, 2008. Table II–1 presents the
                                            acute ambient ozone exposures and                                          disease, harsh weather, interspecies                                          number of counties in areas currently
                                            increased respiratory-related emergency                                    competition and overall decreased plant                                       designated as nonattainment for the
                                            room visits and hospitalizations in the                                    vigor. The adverse effects of ozone on                                        1997 ozone NAAQS as well as the
                                            warm season. In addition, there is                                         forest and other natural vegetation can                                       number of additional counties that have
                                            suggestive evidence of a contribution of                                   potentially lead to species shifts and                                        design values greater than the 2008
                                            ozone to cardiovascular-related                                            loss from the affected ecosystems,                                            ozone NAAQS.

                                               TABLE II–1—COUNTIES WITH DESIGN VALUES GREATER THAN THE 2008 OZONE NAAQS BASED ON 2004–2006 AIR

                                                                                         QUALITY DATA

                                                                                                                                                                                                                        Number of       Population a

                                            1997 Ozone Standard: Counties within the 72 areas currently designated as nonattainment ......................                                                                      337        139,633,458
                                            2008 Ozone Standard: Additional counties that would not meet the 2008 NAAQS b ....................................                                                                   74         15,984,135

                                                 Total ..........................................................................................................................................................               411        155,617,593
                                              a Population numbers are from 2000 census data.
                                              b Attainment designations for 2008 ozone NAAQS have not yet been made. Nonattainment for the 2008 Ozone NAAQS will be based on three
                                            years of air quality data from later years. Also, the county numbers in the table include only the counties with monitors violating the 2008 Ozone
                                            NAAQS. The numbers in this table may be an underestimate of the number of counties and populations that will eventually be included in areas
                                            with multiple counties designated nonattainment.

                                               States with 8-hour ozone                                                nonattainment areas will need to adopt                                        expected to reduce ambient ozone
                                            nonattainment areas are required to take                                   additional emission reduction programs                                        levels. Some of these control programs
                                            action to bring those areas into                                           and the VOC and NOX reductions from                                           are described in Section I.C.1. As a
                                            compliance in the future. Based on the                                     this final action are particularly                                            result of existing programs, the number
                                            final rule designating and classifying 8-                                  important for these states. The                                               of areas that fail to meet the ozone
                                            hour ozone nonattainment areas (69 FR                                      attainment dates associated with the                                          NAAQS in the future is expected to
                                            23951, April 30, 2004), most 8-hour                                        potential new 2008 ozone                                                      decrease. Based on the air quality
                                            ozone nonattainment areas will be                                          nonattainment areas are likely to be in                                       modeling performed for this rule, which
                                            required to attain the 1997 ozone                                          the 2013 to 2021 timeframe, depending                                         does not include any additional local
                                            NAAQS in the 2007 to 2013 time frame                                       on the severity of the problem.                                               controls, we estimate eight counties
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                                            and then maintain the NAAQS                                                   EPA has already adopted many                                               (where 22 million people are projected
                                            thereafter.14 Many of these                                                emission control programs that are                                            to live) will exceed the 1997 8-hour

                                              12 A listing of the 8-hour ozone nonattainment                              13 Population       numbers are from 2000 census data.                       14 The Los Angeles South Coast Air Basin 8-hour

                                            areas is included in the RIA for this rule.                                                                                                              ozone nonattainment area will have to attain before
                                                                                                                                                                                                     June 15, 2021.

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                                  59043

                                            ozone NAAQS in 2020.15 An additional                    smaller particles are deposited deeper in             increased cough, adverse lower-
                                            37 counties (where 27 million people                    the lungs.                                            respiratory symptoms, decrements in
                                            are projected to live) are expected to be                  Fine particles are produced primarily              lung function and changes in heart rate
                                            within 10 percent of violating the 1997                 by combustion processes and by                        rhythm and other cardiac effects.
                                            8-hour ozone NAAQS in 2020.                             transformations of gaseous emissions                  Studies examining populations exposed
                                              Results from the air quality modeling                 (e.g., SOX, NOX and VOC) in the                       to different levels of air pollution over
                                            conducted for this final rule indicate                  atmosphere. The chemical and physical                 a number of years, including the
                                            that the Small SI and Marine SI engine                  properties of PM2.5 may vary greatly                  Harvard Six Cities Study and the
                                            emission reductions in 2020 and 2030                    with time, region, meteorology, and                   American Cancer Society Study, show
                                            will improve both the average and                       source category. Thus, PM2.5 may                      associations between long-term
                                            population-weighted average ozone                       include a complex mixture of different                exposure to ambient PM2.5 and both
                                            concentrations for the U.S. In addition,                pollutants including sulfates, nitrates,              total and cardiovascular and respiratory
                                            the air quality modeling shows that on                  organic compounds, elemental carbon                   mortality.19 In addition, a reanalysis of
                                            average this final rule will help bring                 and metal compounds. These particles                  the American Cancer Society Study
                                            counties closer to ozone attainment as                  can remain in the atmosphere for days                 shows an association between fine
                                            well as assist counties whose ozone                     to weeks and travel hundreds to                       particle and sulfate concentrations and
                                            concentrations are within ten percent                   thousands of kilometers.                              lung cancer mortality.20
                                            below the standard. For example, on a                      The primary PM2.5 NAAQS includes a                    Recently, several studies have
                                            population-weighted basis, the average                  short-term (24-hour) and a long-term                  highlighted the adverse effects of PM
                                            modeled future-year 8-hour ozone                        (annual) standard. The 1997 PM2.5                     specifically from mobile sources.21 22
                                            design values will decrease by 0.57 ppb                 NAAQS established by EPA set the 24-                  Studies have also focused on health
                                            in 2020 and 0.76 ppb in 2030.16 The air                 hour standard at a level of 65µg/m3                   effects due to PM exposures on or near
                                            quality modeling methodology and the                    based on the 98th percentile                          roadways.23 Although these studies
                                            projected reductions are discussed in                   concentration averaged over three years.              include all air pollution sources,
                                            more detail in Chapter 2 of the RIA.                    The annual standard specifies an                      including both spark-ignition (gasoline)
                                                                                                    expected annual arithmetic mean not to                and diesel powered vehicles, they
                                            Particulate Matter                                      exceed 15µg/m3 averaged over three                    indicate that exposure to PM emissions
                                              The Small SI engine and Marine SI                     years.                                                near roadways, thus dominated by
                                            engine standards detailed in this action                   In 2006, EPA amended the NAAQS                     mobile sources, are associated with
                                            will result in reductions in emissions of               for PM2.5 (71 FR 61144, October 17,                   health effects. The controls finalized in
                                            VOCs and NOX which contribute to the                    2006). The final rule addressed                       this action may help to reduce
                                            formation of secondary PM2.5. In                        revisions to the primary and secondary                exposures, and specifically exposures
                                            addition, the standards finalized today                 NAAQS for PM to provide increased                     near the source, to mobile source related
                                            will reduce primary (directly emitted)                  protection of public health and welfare,              PM2.5.
                                            PM2.5 emissions.                                        respectively. The level of the 24-hour
                                                                                                    PM2.5 NAAQS was revised from 65µg/                    Visibility
                                                                                                    m3 to 35 µg/m3 and the level of the                      Visibility can be defined as the degree
                                               PM represents a broad class of                       annual PM2.5 NAAQS was retained at                    to which the atmosphere is transparent
                                            chemically and physically diverse                       15µg/m3. With regard to the secondary                 to visible light. Airborne particles
                                            substances. It can be principally                       standards for PM2.5, EPA has revised                  degrade visibility by scattering and
                                            characterized as discrete particles that                these standards to be identical in all                absorbing light. Visibility is important
                                            exist in the condensed (liquid or solid)                respects to the revised primary                       because it has direct significance to
                                            phase spanning several orders of                        standards.                                            people’s enjoyment of daily activities in
                                            magnitude in size. PM is further                                                                              all parts of the country. Individuals
                                            described by breaking it down into size                 Health Effects of PM2.5
                                                                                                                                                          value good visibility for the well-being
                                            fractions. PM10 refers to particles                       Scientific studies show ambient PM is               it provides them directly, where they
                                            generally less than or equal to 10                      associated with a series of adverse                   live and work and in places where they
                                            micrometers (m) in aerodynamic                          health effects. These health effects are              enjoy recreational opportunities.
                                            diameter. PM2.5 refers to fine particles,               discussed in detail in the 2004 EPA
                                            generally less than or equal to 2.5 in                  Particulate Matter Air Quality Criteria                 19 Dockery, DW; Pope, CA III: Xu, X; et al. 1993.
                                            aerodynamic diameter. Inhalable (or                     Document (PM AQCD), and the 2005                      An association between air pollution and mortality
                                            ‘‘thoracic’’) coarse particles refer to                 PM Staff Paper.17 18 Further discussion               in six U.S. cities. N Engl J Med 329:1753–1759.
                                                                                                                                                            20 Pope, C. A., III; Burnett, R. T.; Thun, M. J.;
                                            those particles generally greater than 2.5              of health effects associated with PM can
                                                                                                                                                          Calle, E. E.; Krewski, D.; Ito, K.; Thurston, G. D.
                                            µm but less than or equal to 10 µm in                   also be found in the RIA for this rule.               (2002) Lung cancer, cardiopulmonary mortality,
                                            aerodynamic diameter. Ultrafine PM                        Health effects associated with short-               and long-term exposure to fine particulate air
                                            refers to particles less than 100                       term exposures (hours to days) to                     pollution. J. Am. Med. Assoc. 287:1132–1141.
                                            nanometers (0.1 µm) in aerodynamic                      ambient PM include premature                            21 Laden, F.; Neas, L.M.; Dockery, D.W.;

                                            diameter. Larger particles tend to be                                                                         Schwartz, J. (2000) Association of Fine Particulate
                                                                                                    mortality, increased hospital                         Matter from Different Sources with Daily Mortality
                                            removed by the respiratory clearance                    admissions, heart and lung diseases,                  in Six U.S. Cities. Environmental Health
                                            mechanisms (e.g. coughing), whereas                                                                           Perspectives 108: 941–947.
                                                                                                      17 U.S. EPA (2004) Air Quality Criteria for           22 Janssen, N.A.H.; Schwartz, J.; Zanobetti, A.;
                                              15 We  expect many of the 8-hour ozone                Particulate Matter (Oct 2004), Volume I Document      Suh, H.H. (2002) Air Conditioning and Source-
                                            nonattainment areas to adopt additional emission        No. EPA600/P–99/002aF and Volume II Document          Specific Particles as Modifiers of the Effect of PM10
                                            reduction programs but we are unable to quantify        No. EPA600/P–99/002bF. This document is               on Hospital Admissions for Heart and Lung Disease.
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                                            or rely upon future reductions from additional state    available in Docket EPA–HQ–OAR–2003–0190.             Environmental Health Perspectives 110: 43–49.
                                            and local programs that have not yet been adopted.        18 U.S. EPA (2005) Review of the National             23 Riediker, M.; Cascio, W.E.; Griggs, T.R..; Herbst,
                                              16 Ozone design values are reported in parts per      Ambient Air Quality Standard for Particulate          M.C.; Bromberg, P.A.; Neas, L.; Williams, R.W.;
                                            million (ppm) as specified in 40 CFR Part 50. Due       Matter: Policy Assessment of Scientific and           Devlin, R.B. (2003) Particulate Matter Exposures in
                                            to the scale of the design value changes in this        Technical Information, OAQPS Staff Paper. EPA–        Cars is Associated with Cardiovascular Effects in
                                            action, results have been presented in parts per        452/R–05–005. This document is available in           Healthy Young Men. Am. J. Respir. Crit. Care Med.
                                            billion (ppb) format.                                   Docket EPA–HQ–OAR–2003–0190.                          169: 934–940.

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                                            59044            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            Visibility is also highly valued in                     remote mandatory class I federal                        with heavy metals or other toxins may
                                            significant natural areas such as                       areas.29 30                                             lead to the ingestion of contaminated
                                            national parks and wilderness areas and                                                                         fish, ingestion of contaminated water,
                                                                                                    Future Visibility Impairment
                                            special emphasis is given to protecting                                                                         damage to the marine ecology, and
                                            visibility in these areas. For more                       Air quality modeling conducted for                    limited recreational uses. Several
                                            information on visibility, see the final                this final rule was used to project                     studies have been conducted in U.S.
                                            2004 PM AQCD as well as the 2005 PM                     visibility conditions in 133 mandatory                  coastal waters and in the Great Lakes
                                            Staff Paper.24 25                                       class I federal areas across the U.S. in                Region in which the role of ambient PM
                                                                                                    2020 and 2030. The results indicate that                deposition and runoff is
                                              EPA is pursuing a two-part strategy to                improvements in visibility will occur in
                                            address visibility. First, to address the                                                                       investigated.32 33 34 35 36
                                                                                                    the future, although all areas will                        Adverse impacts on soil chemistry
                                            welfare effects of PM on visibility, EPA                continue to have annual average                         and plant life have been observed for
                                            has set secondary PM2.5 standards                       deciview levels above background in                     areas heavily impacted by atmospheric
                                            which act in conjunction with the                       2020 and 2030. Chapter 2 of the RIA                     deposition of nutrients, metals and acid
                                            establishment of a regional haze                        contains more detail on the visibility                  species, resulting in species shifts, loss
                                            program. In setting this secondary                      portion of the air quality modeling.                    of biodiversity, forest decline and
                                            standard, EPA has concluded that PM2.5
                                                                                                    Atmospheric Deposition                                  damage to forest productivity. Potential
                                            causes adverse effects on visibility in
                                                                                                                                                            impacts also include adverse effects to
                                            various locations, depending on PM                         Wet and dry deposition of ambient                    human health through ingestion of
                                            concentrations and factors such as                      particulate matter delivers a complex                   contaminated vegetation or livestock (as
                                            chemical composition and average                        mixture of metals (e.g., mercury, zinc,                 in the case for dioxin deposition),
                                            relative humidity. Second, section 169                  lead, nickel, aluminum, cadmium),                       reduction in crop yield, and limited use
                                            of the Clean Air Act provides additional                organic compounds (e.g., POM, dioxins,                  of land due to contamination.
                                            authority to address existing visibility                furans) and inorganic compounds (e.g.,
                                            impairment and prevent future visibility                nitrate, sulfate) to terrestrial and aquatic            Materials Damage and Soiling
                                            impairment in the 156 national parks,                   ecosystems. The chemical form of the                       The deposition of airborne particles
                                            forests and wilderness areas categorized                compounds deposited is impacted by a                    can reduce the aesthetic appeal of
                                            as mandatory class I federal areas (62 FR               variety of factors including ambient                    buildings and culturally important
                                            38680–81, July 18, 1997).26 In July 1999,               conditions (e.g., temperature, humidity,                articles through soiling, and can
                                            the regional haze rule (64 FR 35714) was                oxidant levels) and the sources of the                  contribute directly (or in conjunction
                                            put in place to protect the visibility in               material. Chemical and physical                         with other pollutants) to structural
                                            mandatory class I federal areas.                        transformations of the particulate                      damage by means of corrosion or
                                            Visibility can be said to be impaired in                compounds occur in the atmosphere as                    erosion.37 Particles affect materials
                                            both PM2.5 nonattainment areas and                      well as the media onto which they                       principally by promoting and
                                            mandatory class I federal areas.                        deposit. These transformations in turn                  accelerating the corrosion of metals, by
                                            Current Visibility Impairment                           influence the fate, bioavailability and                 degrading paints, and by deteriorating
                                                                                                    potential toxicity of these compounds.                  building materials such as concrete and
                                               As of March 12, 2008, over 88 million                Atmospheric deposition has been                         limestone. Particles contribute to these
                                            people live in nonattainment areas for                  identified as a key component of the                    effects because of their electrolytic,
                                            the 1997 PM2.5 NAAQS.27 These                           environmental and human health                          hygroscopic, and acidic properties, and
                                            populations, as well as large numbers of                hazard posed by several pollutants                      their ability to adsorb corrosive gases
                                            individuals who travel to these areas,                  including mercury, dioxin and PCBs.31                   (principally sulfur dioxide). The rate of
                                            are likely to experience visibility                        Adverse impacts on water quality can                 metal corrosion depends on a number of
                                            impairment. In addition, while visibility               occur when atmospheric contaminants                     factors, including the deposition rate
                                            trends have improved in mandatory                       deposit to the water surface or when                    and nature of the pollutant; the
                                            class I federal areas the most recent data              material deposited on the land enters a                 influence of the metal protective
                                            show that these areas continue to suffer                water body through runoff. Potential
                                                                                                                                                               32 U.S. EPA (2004) National Coastal Condition
                                            from visibility impairment.28 In                        impacts of atmospheric deposition to
                                                                                                                                                            Report II. Office of Research and Development/
                                            summary, visibility impairment is                       water bodies include those related to                   Office of Water. EPA–620/R–03/002. This document
                                            experienced throughout the U.S., in                     both nutrient and toxic inputs. Adverse                 is available in Docket EPA–HQ–OAR–2003–0190.
                                            multi-state regions, urban areas, and                   effects to human health and welfare can                    33 Gao, Y., E.D. Nelson, M.P. Field, et al. 2002.

                                                                                                    occur from the addition of excess                       Characterization of atmospheric trace elements on
                                                                                                                                                            PM2.5 particulate matter over the New York-New
                                              24 U.S. EPA (2004) Air Quality Criteria for           particulate nitrate nutrient enrichment,                Jersey harbor estuary. Atmos. Environ. 36: 1077–
                                            Particulate Matter (Oct 2004), Volume I Document        which contributes to toxic algae blooms                 1086.
                                            No. EPA600/P–99/002aF and Volume II Document            and zones of depleted oxygen, which                        34 Kim, G., N. Hussain, J.R. Scudlark, and T.M.
                                            No. EPA600/P–99/002bF. This document is                                                                         Church. 2000. Factors influencing the atmospheric
                                            available in Docket EPA–HQ–OAR–2003–0190.               can lead to fish kills, frequently in
                                                                                                                                                            depositional fluxes of stable Pb, 210Pb, and 7Be
                                              25 U.S. EPA (2005) Review of the National             coastal waters. Particles contaminated                  into Chesapeake Bay. J. Atmos. Chem. 36: 65–79.
                                            Ambient Air Quality Standard for Particulate                                                                       35 Lu, R., R.P. Turco, K. Stolzenbach, et al. 2003.
                                            Matter: Policy Assessment of Scientific and                29 U.S. EPA, Air Quality Designations and
                                                                                                                                                            Dry deposition of airborne trace metals on the Los
                                            Technical Information, OAQPS Staff Paper. EPA–          Classifications for the Fine Particles (PM2.5)          Angeles Basin and adjacent coastal waters. J.
                                            452/R–05–005. This document is available in             National Ambient Air Quality Standards, December        Geophys. Res. 108(D2, 4074): AAC 11–1 to 11–24.
                                            Docket EPA–HQ–OAR–2003–0190.                            17, 2004. (70 FR 943, Jan 5. 2005) This document           36 Marvin, C.H., M.N. Charlton, E.J. Reiner, et al.
                                              26 These areas are defined in section 162 of the      is also available on the web at:    2002. Surficial sediment contamination in Lakes
                                            Act as those national parks exceeding 6,000 acres,      pmdesignations/                                         Erie and Ontario: A comparative analysis. J. Great
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                                            wilderness areas and memorial parks exceeding              30 U.S. EPA. Regional Haze Regulations, July 1,
                                                                                                                                                            Lakes Res. 28(3): 437–450.
                                            5,000 acres, and all international parks which were     1999. (64 FR 35714, July 1, 1999).                         37 U.S EPA (2005) Review of the National
                                            in existence on August 7, 1977.                            31 U.S. EPA (2000) Deposition of Air Pollutants to   Ambient Air Quality Standards for Particulate
                                              27 Population numbers are from 2000 census data.
                                                                                                    the Great Waters: Third Report to Congress. Office      Matter: Policy Assessment of Scientific and
                                              28 U.S. EPA (2002) Latest Findings on National        of Air Quality Planning and Standards. EPA–453/         Technical Information, OAQPS Staff Paper. This
                                            Air Quality—2002 Status and Trends. EPA 454/K–          R–00–0005. This document is available in Docket         document is available in Docket EPA–HQ–OAR–
                                            03–001.                                                 EPA–HQ–OAR–2003–0190.                                   2003–0190.

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                                                                Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                                                                         59045

                                            corrosion film; the amount of moisture                                     many parts of the country.38 In 2005                                          Table II–2 presents the number of
                                            present; variability in the                                                EPA designated 39 nonattainment areas                                         counties in areas currently designated as
                                            electrochemical reactions; the presence                                    for the 1997 PM2.5 NAAQS (70 FR 943,                                          nonattainment for the 1997 PM2.5
                                            and concentration of other surface                                         January 5, 2005). These areas are                                             NAAQS as well as the number of
                                            electrolytes; and the orientation of the                                   comprised of 208 full or partial counties                                     additional counties that have design
                                            metal surface.                                                             with a total population exceeding 88                                          values greater than the 2006 PM2.5
                                            Current and Projected PM2.5 Levels                                         million. The 1997 PM2.5 NAAQS was                                             NAAQS.
                                                                                                                       revised and the 2006 PM2.5 NAAQS
                                              PM2.5 concentrations exceeding the
                                                                                                                       became effective on December 18, 2006.
                                            level of the PM2.5 NAAQS occur in

                                                   TABLE II–2—COUNTIES WITH DESIGN VALUES GREATER THAN THE 2006 PM2.5 NAAQS BASED ON 2003–2005 

                                                                                         AIR QUALITY DATA

                                                                                                                                                                                                                        Number of
                                                                                          Nonattainment areas/other violating counties                                                                                                    Population a

                                            1997 PM2.5 Standards: Counties within the 39 areas currently designated as nonattainment ......................                                                                     208           88,394,000
                                            2006 PM2.5 Standards: Additional counties that would not meet the 2006 NAAQS b ....................................                                                                  49           18,198,676

                                                 Total ..........................................................................................................................................................               257          106,595,676
                                              a Population numbers are from 2000 census data.
                                              b Attainment designations for 2006 PM
                                                                                     2.5 NAAQS have not yet been made. Nonattainment for the 2006 PM2.5 NAAQS will be based on 3 years
                                            of air quality data from later years. Also, the county numbers in the table includes only the counties with monitors violating the 2006 PM2.5
                                            NAAQS. The numbers in this table may be an underestimate of the number of counties and populations that will eventually be included in areas
                                            with multiple counties designated nonattainment.

                                               Areas designated as not attaining the                                   additional reductions from this rule                                          noncancer hazard drivers in the 1999
                                            1997 PM2.5 NAAQS will need to attain                                       ensuring long term maintenance of the                                         National-Scale Air Toxics Assessment
                                            the 1997 standards in the 2010 to 2015                                     PM2.5 NAAQS.                                                                  (NATA) and have significant inventory
                                            time frame, and then maintain them                                            Air quality modeling performed for                                         contributions from mobile sources. That
                                            thereafter. The attainment dates                                           this final rule shows the emissions                                           is, for a significant portion of the
                                            associated with the potential new 2006                                     reductions will improve both the                                              population, these compounds pose a
                                            PM2.5 nonattainment areas are likely to                                    average and population-weighted                                               significant portion of the total cancer
                                            be in the 2014 to 2019 timeframe. The                                      average PM2.5 concentrations for the                                          and noncancer risk from breathing
                                            emission standards finalized in this                                       U.S. On a population-weighted basis,                                          outdoor air toxics. In addition, human
                                            action become effective as early as 2009                                   the average modeled future-year annual                                        exposure to toxics from spark-ignition
                                            making the inventory reductions from                                       PM2.5 design value (DV) for all counties                                      engines also occurs as a result of
                                            this rulemaking useful to states in                                        is expected to decrease by 0.02 µg/m3 in                                      operating these engines and from
                                            attaining or maintaining the PM2.5                                         2020 and 2030. There are areas with                                           intrusion of emissions in residential
                                            NAAQS.                                                                     larger decreases in their future-year                                         garages into attached indoor spaces.39 40
                                                                                                                       annual PM2.5 DV, for instance the                                             The emission reductions from Small SI
                                               EPA has already adopted many                                            Chicago region will experience a 0.08
                                            emission control programs that are                                                                                                                       and Marine SI engines that are finalized
                                                                                                                       µ g/m3 reduction by 2030. The air                                             in this rulemaking will help reduce
                                            expected to reduce ambient PM2.5 levels                                    quality modeling methodology and the
                                            and which will assist in reducing the                                                                                                                    exposure to these harmful substances.
                                                                                                                       projected reductions are discussed in
                                            number of areas that fail to achieve the                                   more detail in Chapter 2 of the RIA.                                             Benzene: The EPA’s IRIS database
                                            PM2.5 NAAQS. Even so, our air quality                                                                                                                    lists benzene as a known human
                                            modeling for this final rule projects that                                 B. Air Toxics                                                                 carcinogen (causing leukemia) by all
                                            in 2020, with all current controls but                                       Small SI and Marine SI emissions also                                       routes of exposure, and concludes that
                                            excluding the reductions achieved                                          contribute to ambient levels of air toxics                                    exposure is associated with additional
                                            through this rule, up to 11 counties with                                  known or suspected as human or animal                                         health effects, including genetic changes
                                            a population of over 24 million may not                                    carcinogens, or that have noncancer                                           in both humans and animals and
                                            attain the current annual PM2.5 standard                                   health effects. These air toxics include                                      increased proliferation of bone marrow
                                            of 15 µg/m3. These numbers do not                                          benzene, 1, 3-butadiene, formaldehyde,                                        cells in mice.41 42 43 EPA states in its
                                            account for additional areas that have                                     acetaldehyde, acrolein, polycyclic                                            IRIS database that data indicate a causal
                                            air quality measurements within 10                                         organic matter (POM), and naphthalene.                                        relationship between benzene exposure
                                            percent of the annual PM2.5 standard.                                      All of these compounds, except                                                and acute lymphocytic leukemia and
                                            These areas, although not violating the                                    acetaldehyde, were identified as                                              suggest a relationship between benzene
                                            standards, will also benefit from the                                      national or regional cancer risk or                                           exposure and chronic non-lymphocytic
                                              38 A listing of the PM
                                                                      2.5 nonattainment areas is                       lack of correlation between aromatic VOCs with                                carcinogenic risk of chemicals to humans, Volume
                                            included in the RIA for this rule.                                         respective urinary biomarkers. Sci Total Environ                              29, Some industrial chemicals and dyestuffs, World
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                                              39 Baldauf, R.; Fortune, C.; Weinstein, J.; Wheeler,                     241: 151–159.                                                                 Health Organization, Lyon, France, p. 345–389.
                                            M.; Blanchard, B. (2006) Air contaminant exposures                           41 U.S. EPA. 2000. Integrated Risk Information                                 43 Irons, R.D.; Stillman, W.S.; Colagiovanni, D.B.;

                                            during the operation of lawn and garden                                    System File for Benzene. This material is available                           Henry, V.A. 1992. Synergistic action of the benzene
                                            equipment. J Expos Sci Environ Epidmeiol 16: 362–                          electronically at                              metabolite hydroquinone on myelopoietic
                                            370.                                                                       0276.htm.                                                                     stimulating activity of granulocyte/macrophage
                                              40 Isbell, M.; Ricker, J.; Gordian, M.E.; Duff, L.K.                       42 International Agency for Research on Cancer                              colony-stimulating factor in vitro, Proc. Natl. Acad.
                                            (1999) Use of biomarkers in an indoor air study:                           (IARC). 1982. Monographs on the evaluation of                                 Sci. 89:3691–3695.

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                                            59046            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            leukemia and chronic lymphocytic                        determined that 1,3-butadiene is a                            currently performing an update of these
                                            leukemia. The International Agency for                  human carcinogen and the U.S. DHHS                            studies. A recent National Institute of
                                            Research on Carcinogens (IARC) has                      has characterized 1,3-butadiene as a                          Occupational Safety and Health
                                            determined that benzene is a human                      known human carcinogen.56 57 There are                        (NIOSH) study of garment workers also
                                            carcinogen and the U.S. Department of                   numerous studies consistently                                 found increased risk of death due to
                                            Health and Human Services (DHHS) has                    demonstrating that 1,3-butadiene is                           leukemia among workers exposed to
                                            characterized benzene as a known                        metabolized into genotoxic metabolites                        formaldehyde.62 Extended follow-up of
                                            human carcinogen.44 45                                  by experimental animals and humans.                           a cohort of British chemical workers did
                                              A number of adverse noncancer                         The specific mechanisms of 1,3-                               not find evidence of an increase in
                                            health effects including blood disorders,               butadiene-induced carcinogenesis are                          nasopharyngeal or
                                            such as preleukemia and aplastic                        unknown; however, the scientific                              lymphohematopoietic cancers, but a
                                            anemia, have also been associated with                  evidence strongly suggests that the                           continuing statistically significant
                                            long-term exposure to benzene.46 47 The                 carcinogenic effects are mediated by                          excess in lung cancers was reported.63
                                            most sensitive noncancer effect                         genotoxic metabolites. Animal data                            Recently, the IARC re-classified
                                            observed in humans, based on current                    suggest that females may be more                              formaldehyde as a human carcinogen
                                            data, is the depression of the absolute                 sensitive than males for cancer effects                       (Group 1).64
                                            lymphocyte count in blood.48 49 In                      associated with 1,3-butadiene exposure;                          Formaldehyde exposure also causes a
                                            addition, recent work, including studies                there are insufficient data in humans                         range of noncancer health effects,
                                            sponsored by the Health Effects Institute               from which to draw conclusions about                          including irritation of the eyes (burning
                                            (HEI), provides evidence that                           sensitive subpopulations. 1,3-butadiene                       and watering of the eyes), nose and
                                            biochemical responses are occurring at                  also causes a variety of reproductive and                     throat. Effects from repeated exposure in
                                            lower levels of benzene exposure than                   developmental effects in mice; no                             humans include respiratory tract
                                            previously known.50 51 52 53 EPA’s IRIS                 human data on these effects are                               irritation, chronic bronchitis and nasal
                                            program has not yet evaluated these                     available. The most sensitive effect was                      epithelial lesions such as metaplasia
                                            new data.                                               ovarian atrophy observed in a lifetime                        and loss of cilia. Animal studies suggest
                                              1,3-Butadiene: EPA has characterized                  bioassay of female mice.58                                    that formaldehyde may also cause
                                            1,3-butadiene as carcinogenic to                                                                                      airway inflammation—including
                                            humans by inhalation.54 55 The IARC has                   Formaldehyde: Since 1987, EPA has                           eosinophil infiltration into the airways.
                                                                                                    classified formaldehyde as a probable                         There are several studies that suggest
                                              44 International Agency for Research on Cancer        human carcinogen based on evidence in                         that formaldehyde may increase the risk
                                            (IARC). 1987. Monographs on the evaluation of           humans and in rats, mice, hamsters, and                       of asthma—particularly in the
                                            carcinogenic risk of chemicals to humans, Volume        monkeys.59 EPA is currently reviewing                         young.65 66
                                            29, Supplement 7, Some industrial chemicals and         recently published epidemiological
                                            dyestuffs, World Health Organization, Lyon, France.                                                                      Acetaldehyde: Acetaldehyde is
                                              45 U.S. Department of Health and Human Services       data. For instance, research conducted                        classified in EPA’s IRIS database as a
                                            National Toxicology Program 11th Report on              by the National Cancer Institute (NCI)                        probable human carcinogen, based on
                                            Carcinogens available at:     found an increased risk of                                    nasal tumors in rats, and is considered
                                            go/16183.                                               nasopharyngeal cancer and
                                              46 Aksoy, M. (1989). Hematotoxicity and
                                                                                                                                                                  toxic by the inhalation, oral, and
                                                                                                    lymphohematopoietic malignancies                              intravenous routes.67 Acetaldehyde is
                                            carcinogenicity of benzene. Environ. Health
                                            Perspect. 82: 193–197.                                  such as leukemia among workers
                                              47 Goldstein, B.D. (1988). Benzene toxicity.          exposed to formaldehyde.60 61 NCI is                          in formaldehyde industries. Journal of the National
                                            Occupational medicine. State of the Art Reviews. 3:                                                                   Cancer Institute 95: 1615–1623.
                                            541–554.                                                                                                                61 Hauptmann, M.; Lubin, J. H.; Stewart, P. A.;
                                                                                                    National Center for Environmental Assessment,
                                              48 Rothman, N., G.L. Li, M. Dosemeci, W.E.            Washington Office, Washington, DC. Report No.                 Hayes, R. B.; Blair, A. 2004. Mortality from solid
                                            Bechtold, G.E. Marti, Y.Z. Wang, M. Linet, L.Q. Xi,     EPA600–P–98–001F. This document is available                  cancers among workers in formaldehyde industries.
                                            W. Lu, M.T. Smith, N. Titenko-Holland, L.P. Zhang,      electronically at            American Journal of Epidemiology 159: 1117–1130.
                                                                                                                                                                    62 Pinkerton, L. E. 2004. Mortality among a cohort
                                            W. Blot, S.N. Yin, and R.B. Hayes (1996)                buta-sup.pdf.
                                            Hematotoxicity among Chinese workers heavily               55 U.S. EPA (2002) Full IRIS Summary for 1,3-              of garment workers exposed to formaldehyde: an
                                            exposed to benzene. Am. J. Ind. Med. 29: 236–246.       butadiene (CASRN 106–99–0). Environmental                     update. Occup. Environ. Med. 61: 193–200.
                                              49 U.S. EPA (2002) Toxicological Review of                                                                            63 Coggon, D, EC Harris, J Poole, KT Palmer. 2003.
                                                                                                    Protection Agency, Integrated Risk Information
                                            Benzene (Noncancer Effects). Environmental              System (IRIS), Research and Development, National             Extended follow-up of a cohort of British chemical
                                            Protection Agency, Integrated Risk Information          Center for Environmental Assessment, Washington,              workers exposed to formaldehyde. J National
                                            System (IRIS), Research and Development, National       DC                    Cancer Inst. 95:1608–1615.
                                                                                                                                                                    64 International Agency for Research on Cancer
                                            Center for Environmental Assessment, Washington            56 International Agency for Research on Cancer
                                            DC. This material is available electronically at        (IARC) (1999) Monographs on the evaluation of                 (IARC). 2006. Formaldehyde, 2-Butoxyethanol and
                                                   carcinogenic risk of chemicals to humans, Volume              1-tert-Butoxypropan-2-ol. Volume 88. (in
                                              50 Qu, O.; Shore, R.; Li, G.; Jin, X.; Chen, C.L.;    71, Re-evaluation of some organic chemicals,                  preparation), World Health Organization, Lyon,
                                            Cohen, B.; Melikian, A.; Eastmond, D.; Rappaport,       hydrazine and hydrogen peroxide and Volume 97                 France.
                                                                                                                                                                    65 Agency for Toxic Substances and Disease
                                            S.; Li, H.; Rupa, D.; Suramaya, R.; Songnian, W.;       (in preparation), World Health Organization, Lyon,
                                            Huifant, Y.; Meng, M.; Winnik, M.; Kwok, E.; Li, Y.;    France.                                                       Registry (ATSDR). 1999. Toxicological profile for
                                            Mu, R.; Xu, B.; Zhang, X.; Li, K. (2003) HEI Report        57 U.S. Department of Health and Human Services            Formaldehyde. Atlanta, GA: U.S. Department of
                                            115, Validation & Evaluation of Biomarkers in                                                                         Health and Human Services, Public Health Service.
                                                                                                    (2005) National Toxicology Program 11th Report on
                                            Workers Exposed to Benzene in China.                                                                        
                                                                                                    Carcinogens available at:                    66 WHO (2002) Concise International Chemical
                                              51 Qu, Q., R. Shore, G. Li, X. Jin, L.C. Chen, B.     index.cfm?objectid=32BA9724-F1F6-975E-
                                                                                                                                                                  Assessment Document 40: Formaldehyde.
                                            Cohen, et al. (2002) Hematological changes among        7FCE50709CB4C932.
                                                                                                                                                                  Published under the joint sponsorship of the United
                                            Chinese workers with a broad range of benzene              58 Bevan, C.; Stadler, J.C.; Elliot, G.S.; et al. (1996)
                                                                                                                                                                  Nations Environment Programme, the International
                                            exposures. Am. J. Industr. Med. 42: 275–285.            Subchronic toxicity of 4-vinylcyclohexene in rats
                                              52 Lan, Qing, Zhang, L., Li, G., Vermeulen, R., et
                                                                                                                                                                  Labour Organization, and the World Health
                                                                                                    and mice by inhalation. Fundam. Appl. Toxicol.                Organization, and produced within the framework
                                            al. (2004) Hematotoxically in Workers Exposed to        32:1–10.                                                      of the Inter-Organization Programme for the Sound
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                                            Low Levels of Benzene. Science 306: 1774–1776.             59 U.S. EPA (1987) Assessment of Health Risks to
                                                                                                                                                                  Management of Chemicals. Geneva.
                                              53 Turtletaub, K.W. and Mani, C. (2003) Benzene       Garment Workers and Certain Home Residents from                 67 U.S. EPA. 191. Integrated Risk Information
                                            metabolism in rodents at doses relevant to human        Exposure to Formaldehyde, Office of Pesticides and            System File of Acetaldehyde. Research and
                                            exposure from Urban Air. Research Reports Health        Toxic Substances, April 1987.                                 Development, National Center for Environmental
                                            Effect Inst. Report No.113.                                60 Hauptmann, M.; Lubin, J. H.; Stewart, P. A.;            Assessment, Washington, DC. This material is
                                              54 U.S. EPA (2002) Health Assessment of 1,3-          Hayes, R. B.; Blair, A. 2003. Mortality from                  available electronically at
                                            Butadiene. Office of Research and Development,          lymphohematopoetic malignancies among workers                 subst/0290.htm.

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                                    59047

                                            reasonably anticipated to be a human                        Acrolein is extremely acrid and                      including low birth weight and reduced
                                            carcinogen by the U.S. DHHS in the                       irritating to humans when inhaled, with                 length at birth, as well as impaired
                                            11th Report on Carcinogens and is                        acute exposure resulting in upper                       cognitive development at age three.80 81
                                            classified as possibly carcinogenic to                   respiratory tract irritation, mucus                     EPA has not yet evaluated these recent
                                            humans (Group 2B) by the IARC.68 69                      hypersecretion and congestion. Levels                   studies.
                                            EPA is currently conducting a                            considerably lower than 1 ppm (2.3 mg/                    Naphthalene: Naphthalene is found in
                                            reassessment of cancer risk from                         m3) elicit subjective complaints of eye                 small quantities in gasoline and diesel
                                            inhalation exposure to acetaldehyde.                     and nasal irritation and a decrease in                  fuels. Naphthalene emissions have been
                                               The primary noncancer effects of                      the respiratory rate.76 77 Lesions to the               measured in larger quantities in both
                                            exposure to acetaldehyde vapors                          lungs and upper respiratory tract of rats,              gasoline and diesel exhaust compared
                                            include irritation of the eyes, skin, and                rabbits, and hamsters have been                         with evaporative emissions from mobile
                                            respiratory tract.70 In short-term (4                    observed after subchronic exposure to                   sources, indicating it is primarily a
                                            week) rat studies, degeneration of                       acrolein. Based on animal data,                         product of combustion. EPA recently
                                            olfactory epithelium was observed at                     individuals with compromised                            released an external review draft of a
                                            various concentration levels of                          respiratory function (e.g., emphysema,                  reassessment of the inhalation
                                            acetaldehyde exposure.71 72 Data from                    asthma) are expected to be at increased                 carcinogenicity of naphthalene based on
                                            these studies were used by EPA to                        risk of developing adverse responses to                 a number of recent animal
                                            develop an inhalation reference                          strong respiratory irritants such as                    carcinogenicity studies.82 The draft
                                            concentration. Some asthmatics have                      acrolein. This was demonstrated in mice                 reassessment recently completed
                                            been shown to be a sensitive                             with allergic airway-disease by                         external peer review.83 Based on
                                            subpopulation to decrements in                           comparison to non-diseased mice in a                    external peer review comments received
                                            functional expiratory volume (FEV1                       study of the acute respiratory irritant                 to date, additional analyses are being
                                            test) and bronchoconstriction upon                       effects of acrolein.78                                  undertaken. This external review draft
                                            acetaldehyde inhalation.73 The agency                       EPA is currently in the process of                   does not represent official agency
                                            is currently conducting a reassessment                   conducting an assessment of acute                       opinion and was released solely for the
                                            of the health hazards from inhalation                    exposure effects for acrolein. The                      purposes of external peer review and
                                            exposure to acetaldehyde.                                intense irritancy of this carbonyl has                  public comment. Once EPA evaluates
                                               Acrolein: EPA determined in 2003                      been demonstrated during controlled                     public and peer reviewer comments, the
                                            that the human carcinogenic potential of                 tests in human subjects, who suffer                     document will be revised. The National
                                            acrolein could not be determined                         intolerable eye and nasal mucosal                       Toxicology Program listed naphthalene
                                            because the available data were                          sensory reactions within minutes of                     as ‘‘reasonably anticipated to be a
                                            inadequate. No information was                           exposure.79                                             human carcinogen’’ in 2004 on the basis
                                            available on the carcinogenic effects of                    Polycyclic Organic Matter (POM):
                                                                                                                                                             of bioassays reporting clear evidence of
                                            acrolein in humans and the animal data                   POM is generally defined as a large class
                                                                                                                                                             carcinogenicity in rats and some
                                            provided inadequate evidence of                          of organic compounds which have
                                                                                                                                                             evidence of carcinogenicity in mice.84
                                            carcinogenicity.74 The IARC determined                   multiple benzene rings and a boiling
                                                                                                                                                             California EPA has released a new risk
                                            in 1995 that acrolein was not                            point greater than 100 degrees Celsius.
                                                                                                                                                             assessment for naphthalene, and the
                                            classifiable as to its carcinogenicity in                Many of the compounds included in the
                                                                                                                                                             IARC has reevaluated naphthalene and
                                            humans.75                                                class of compounds known as POM are
                                                                                                                                                             re-classified it as Group 2B: possibly
                                                                                                     classified by EPA as probable human
                                                                                                                                                             carcinogenic to humans.85 Naphthalene
                                              68 U.S. Department of Health and Human Services        carcinogens based on animal data. One
                                            National Toxicology Program 11th Report on               of these compounds, naphthalene, is
                                            Carcinogens available at:                                                                       80 Perera, F.P.; Rauh, V.; Tsai, W–Y.; et al. (2002)
                                            index.cfm?objectid=32BA9724-F1F6-975E-                   discussed separately below. Polycyclic                  Effect of transplacental exposure to environmental
                                            7FCE50709CB4C932.                                        aromatic hydrocarbons (PAHs) are a                      pollutants on birth outcomes in a multiethnic
                                              69 International Agency for Research on Cancer         subset of POM that contain only                         population. Environ Health Perspect. 111: 201–205.
                                            (IARC). 1999. Re-evaluation of some organic              hydrogen and carbon atoms. A number                       81 Perera, F.P.; Rauh, V.; Whyatt, R.M.; Tsai, W.Y.;
                                            chemicals, hydrazine, and hydrogen peroxide. IARC                                                                Tang, D.; Diaz, D.; Hoepner, L.; Barr, D.; Tu, Y.H.;
                                            Monographs on the Evaluation of Carcinogenic Risk
                                                                                                     of PAHs are known or suspected
                                                                                                                                                             Camann, D.; Kinney, P. (2006) Effect of prenatal
                                            of Chemical to Humans, Vol 71. Lyon, France.             carcinogens. Recent studies have found                  exposure to airborne polycyclic aromatic
                                              70 U.S. EPA. 1991. Integrated Risk Information         that maternal exposures to PAHs (a                      hydrocarbons on neurodevelopment in the first 3
                                            System File of Acetaldehyde. This material is            subclass of POM) in a population of                     years of life among inner-city children. Environ
                                            available electronically at     pregnant women were associated with                     Health Perspect 114: 1287–1292.
                                            subst/0290.htm.                                                                                                    82 U.S. EPA (2004) Toxicological Review of
                                              71 Appleman, L. M., R. A. Woutersen, V. J. Feron,      several adverse birth outcomes,                         Naphthalene (Reassessment of the Inhalation
                                            R. N. Hooftman, and W. R. F. Notten. 1986. Effects                                                               Cancer Risk), Environmental Protection Agency,
                                            of the variable versus fixed exposure levels on the      carcinogenic risk of chemicals to humans, Volume        Integrated Risk Information System, Research and
                                            toxicity of acetaldehyde in rats. J. Appl. Toxicol. 6:   63, Dry cleaning, some chlorinated solvents and         Development, National Center for Environmental
                                            331–336.                                                 other industrial chemicals, World Health                Assessment, Washington, DC. This material is
                                              72 Appleman, L.M., R.A. Woutersen, and V.J.            Organization, Lyon, France.                             available electronically at
                                            Feron. 1982. Inhalation toxicity of acetaldehyde in         76 Weber-Tschopp, A; Fischer, T; Gierer, R; et al.   subst/0436.htm.
                                            rats. I. Acute and subacute studies. Toxicology. 23:     (1977) Experimentelle reizwirkungen von Acrolein          83 Oak Ridge Institute for Science and Education
                                            293–297.                                                 auf den Menschen. Int Arch Occup Environ Hlth           (2004) External Peer Review for the IRIS
                                              73 Myou, S.; Fujimura, M.; Nishi K.; Ohka, T.; and     40(2):117–130. In German.                               Reassessment of the Inhalation Carcinogenicity of
                                            Matsuda, T. 1993. Aerosolized acetaldehyde                  77 Sim, VM; Pattle, RE. (1957) Effect of possible    Naphthalene. August 2004.
                                            induces histamine-mediated bronchoconstriction in        smog irritants on human subjects. J Am Med Assoc        ncea/cfm/recordisplay.cfm?deid=84403.
                                            asthmatics. Am. Rev. Respir.Dis.148(4 Pt 1): 940–3.      165(15):1908–1913.                                        84 National Toxicology Program (NTP). (2004).
                                              74 U.S. EPA. 2003. Integrated Risk Information            78 Morris JB, Symanowicz PT, Olsen JE, et al.        11th Report on Carcinogens. Public Health Service,
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                                            System File of Acrolein. Research and                    2003. Immediate sensory nerve-mediated                  U.S. Department of Health and Human Services,
                                            Development, National Center for Environmental           respiratory responses to irritants in healthy and       Research Triangle Park, NC. Available from:
                                            Assessment, Washington, DC. This material is             allergic airway-diseased mice. J Appl Physiol 
                                            available at              94(4):1563–1571.                                          85 International Agency for Research on Cancer
                                            0364.htm.                                                   79 Sim VM, Pattle RE. Effect of possible smog        (IARC) (2002) Monographs on the Evaluation of the
                                              75 International Agency for Research on Cancer         irritants on human subjects JAMA165: 1980–2010,         Carcinogenic Risk of Chemicals for Humans. Vol.
                                            (IARC). 1995. Monographs on the evaluation of            1957.                                                   82. Lyon, France.

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                                            59048               Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            also causes a number of chronic non-                                 carboxyhemoglobin and reducing the                                       Interior, and the National Institute for
                                            cancer effects in animals, including                                 delivery of oxygen to the body’s organs                                  Occupational Safety and Health
                                            abnormal cell changes and growth in                                  and tissues. The health threat from CO                                   maintains a record of published CO-
                                            respiratory and nasal tissues.86                                     is most serious for those who suffer                                     related fatal and nonfatal poisonings.90
                                               The standards finalized in this action                            from cardiovascular disease,                                             Between 1984 and 2004, 113 CO-related
                                            will reduce air toxics emitted from these                            particularly those with angina or                                        deaths and 458 non-fatal CO poisonings
                                            engines, vessels and equipment. These                                peripheral vascular disease. Healthy                                     have been identified based on hospital
                                            emissions reductions will help to                                    individuals also are affected, but only at                               records, press accounts and other
                                            mitigate some of the adverse health                                  higher CO levels. Exposure to elevated                                   information. Deaths have been
                                            effects associated with their operation.                             CO levels is associated with impairment                                  attributed to exhaust from both onboard
                                            C. Carbon Monoxide                                                   of visual perception, work capacity,                                     generators and propulsion engines.
                                                                                                                 manual dexterity, learning ability and                                   Houseboats, cabin cruisers, and ski
                                               CO is a colorless, odorless gas                                   performance of complex tasks. Carbon
                                            produced through the incomplete                                                                                                               boats are the most common types of
                                                                                                                 monoxide also contributes to ozone                                       boats associated with CO poisoning
                                            combustion of carbon-based fuels. The                                nonattainment since carbon monoxide
                                            current primary NAAQS for CO are 35                                                                                                           cases. These incidents have prompted
                                                                                                                 reacts photochemically in the                                            other federal agencies, including the
                                            ppm for the 1-hour average and nine                                  atmosphere to form ozone.87 Additional
                                            ppm for the 8-hour average. These                                                                                                             United States Coast Guard and National
                                                                                                                 information on CO related health effects                                 Park Service, to issue advisory
                                            values are not to be exceeded more than                              can be found in the Carbon Monoxide
                                            once per year.                                                                                                                                statements and other interventions to
                                                                                                                 Air Quality Criteria Document (CO                                        boaters to avoid excessive CO
                                               We previously found that emissions
                                                                                                                 AQCD).88                                                                 exposure.91
                                            from nonroad engines contribute
                                            significantly to CO concentrations in                                   In addition to health effects from                                       As of March 12, 2008, there were
                                            more than one nonattainment area (59                                 chronic exposure to ambient CO levels,
                                                                                                                                                                                          approximately 850,000 people living in
                                            FR 31306, June 17, 1994). We have also                               acute exposures to higher levels are also
                                                                                                                                                                                          4 areas (which include 5 counties)
                                            previously found that emissions from                                 a problem, see the Final RIA for
                                                                                                                                                                                          designated as nonattainment for CO.92
                                            Small SI engines contribute to CO                                    additional information. In recent years a
                                                                                                                                                                                          The CO nonattainment areas are
                                            concentrations in more than one                                      substantial number of CO poisonings
                                                                                                                                                                                          presented in the Final RIA.
                                            nonattainment area. We are adopting a                                and deaths have occurred on and
                                            finding, based on the information in this                            around recreational boats across the                                        EPA’s NONROAD model indicates
                                            section and in Chapters 2 and 3 of the                               nation.89 The actual number of deaths                                    that Marine SI emissions are present in
                                            Final RIA, that emissions from Marine                                attributable to CO poisoning while                                       each of the CO nonattainment areas and
                                            SI engines and vessels likewise                                      boating is difficult to estimate because                                 thus contribute to CO concentrations in
                                            contribute to CO concentrations in more                              CO-related deaths in the water may be                                    those nonattainment areas. The CO
                                            than one CO nonattainment area.                                      labeled as drowning. An interagency                                      contribution from Marine SI engines in
                                               Carbon monoxide enters the                                        team consisting of the National Park                                     classified CO nonattainment areas is
                                            bloodstream through the lungs, forming                               Service, the U.S. Department of the                                      presented in Table II–3.

                                                                                                                                                                                                                                        CO (short tons
                                                                     Area                                                         County                                                         Category                                 in 2005)

                                            Las Vegas, NV ........................................       Clark ........................................................   Marine SI .................................................           3,016
                                            Reno, NV .................................................   Washoe ...................................................       Marine SI .................................................           3,494
                                            El Paso, TX .............................................    El Paso ....................................................     Marine SI .................................................              37
                                               Source: U.S. EPA, NONROAD 2005 model. 

                                               a This table does not include Salem, OR which is an unclassified CO nonattainment area. 

                                              Based on the national inventory                                    III. Sterndrive and Inboard Marine                                       which a manufacturer will take steps to
                                            numbers in Chapter 3 of the Final RIA                                Engines                                                                  ‘‘marinize’’ the engine for use in marine
                                            and the local inventory numbers                                                                                                               applications. This marinization process
                                                                                                                 A. Overview
                                            described in this section, we find that                                                                                                       includes choosing and optimizing the
                                            emissions of CO from Marine SI engines                                 This section applies to sterndrive and                                 fuel management system, configuring a
                                            and vessels contribute to CO                                         inboard marine (SD/I) engines.                                           marine cooling system, adding intake
                                            concentrations in more than one CO                                   Sterndrive and inboard engines are                                       and exhaust manifolds, and adding
                                            nonattainment area.                                                  spark-ignition engines typically derived                                 accessory drives and units. These
                                                                                                                 from automotive engine blocks for                                        engines typically have water-jacketed
                                              86 U.S. EPA (1998) Toxicological Review of                            88 U.S. EPA (2000). Air Quality Criteria for Carbon                   poisonings. This document is available
                                            Naphthalene, Environmental Protection Agency,                        Monoxide, EPA/600/P–99/001F. This document is                            electronically at
                                            Integrated Risk Information System, Research and                     available in Docket EPA–HQ–OAR–2004–0008.                                thelistbystate10–19–04.pdf and in docket EPA–HQ–
                                                                                                                    89 Mott, J.S.; Wolfe, M.I.; Alverson, C.J.;
                                            Development, National Center for Environmental                                                                                                OAR–2004–0008.
                                            Assessment, Washington, DC. This material is                         Macdonald, S.C.; Bailey, C.R.; Ball, L.B.; Moorman,                        91 U.S Department of the Interior. (2004) Carbon
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                                                                                                                 J.E.; Somers, J.H.; Mannino, D.M.; Redd, S.C. (2002)
                                            available electronically at                                                                                          monoxide dangers from generators and propulsion
                                                                                                                 National Vehicle Emissions Policies and Practices
                                            subst/0436.htm.                                                      and Declining US Carbon Monoxide-Related                                 engines. On-board boats—compilation of materials.
                                              87 U.S. EPA (2000). Air Quality Criteria for Carbon
                                                                                                                 Mortality. JAMA 288:988–995.                                             This document is available online at http://
                                            Monoxide, EPA/600/P–99/001F. This document is                           90 National Park Service; Department of the                  and in
                                            available in Docket EPA–HQ–OAR–2004–0008.                            Interior; National Institute for Occupational Safety                     docket EPA–HQ–OAR–2004–0008.
                                                                                                                 and Health. (2004) Boat-related carbon monoxide                            92 Population numbers are from 2000 census data.

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                       59049

                                            exhaust systems to keep surface                         percent and sales will be impacted by                 B. Engines Covered by This Rule
                                            temperatures low. Ambient surface                       less than 2 percent. It is also possible
                                                                                                                                                          (1) Definition of Sterndrive and Inboard
                                            water (seawater or freshwater) is                       that SD/I engine manufacturers may                    Engines
                                            generally added to the exhaust gases                    promote higher fuel efficiency and other
                                            before the mixture is expelled under                    performance advantages of compliant                      For the purpose of this regulation, SD/
                                            water.                                                  engines which would allow them to                     I engines encompass all spark-ignition
                                               As described in Section I, the initial               promote these engines as having a                     marine propulsion engines that are not
                                            rulemaking to set standards for Marine                  greater value and justifying these small              outboard or personal watercraft engines.
                                            SI engines did not include final                        expected price increases. As a result, we             A discussion of the revised definitions
                                            emission standards for SD/I engines. In                 believe we can achieve the maximum                    for outboard and personal watercraft
                                            that rulemaking, we finalized the                       emission reductions from Marine SI                    engines is in Section IV.B. We consider
                                            finding under Clean Air Act section                     engines by setting standards for SD/I                 all the following to be SD/I engines:
                                            213(a)(3) that all Marine SI engines                    engines based on the use of catalyst                  inboard, sterndrive (also known as
                                            cause or contribute to ozone                            technology at the same time that we                   inboard/outboard), airboat engines, and
                                            concentrations in two or more ozone                                                                           jet boat engines.
                                                                                                    adopt more stringent standards for
                                            nonattainment areas in the United                                                                                The definitions for sterndrive and
                                                                                                    outboard and personal watercraft                      inboard engines at 40 CFR part 91 are
                                            States. However, because uncontrolled                   engines.
                                            SD/I engines appeared to be a low-                                                                            presented below:
                                            emission alternative to outboard and                      As described in Section II, we are                     • Sterndrive engine means a four
                                            personal watercraft engines in the                      adopting the finding under Clean Air                  stroke Marine SI engine that is designed
                                            marketplace, even after the emission                    Act section 213(a)(3) that Marine SI                  such that the drive unit is external to
                                            standards for these engines were fully                  engines cause or contribute to CO                     the hull of the marine vessel, while the
                                            phased in, we decided to set emission                   concentrations in two or more                         engine is internal to the hull of the
                                            standards only for outboard and                         nonattainment areas of the United                     marine vessel.
                                            personal watercraft engines. At that                    States. We believe the new CO                            • Inboard engine means a four stroke
                                            time, outboard and personal watercraft                  standards will also reduce the exposure               Marine SI engine that is designed such
                                            engines were almost all two-stroke                      of individual boaters and bystanders to               that the propeller shaft penetrates the
                                            engines with much higher emission                       potentially dangerous CO levels.                      hull of the marine vessel while the
                                            rates compared to the SD/I engines,                                                                           engine and the remainder of the drive
                                                                                                      We believe catalyst technology is
                                            which were all four-stroke engines. We                                                                        unit is internal to the hull of the marine
                                                                                                    available for achieving the new
                                            pointed out in that initial rulemaking                                                                        vessel.
                                                                                                    standards. Catalysts have been used for                  We are amending the above
                                            that we wanted to avoid imposing costs                  decades in automotive applications to
                                            on SD/I engines that could cause a                                                                            definitions for determining which
                                                                                                    reduce emissions, and catalyst                        exhaust emission standards apply to
                                            market shift to increased use of the                    manufacturers have continued to
                                            higher-emitting outboard engines,                                                                             spark-ignition marine engines in 2010.
                                                                                                    develop and improve this technology.                  The new definition establishes a single
                                            which will undermine the broader goal                   Design issues for using catalysts in
                                            of achieving the greatest degree of                                                                           term to include sterndrive and inboard
                                                                                                    marine applications are primarily                     engines together as a single engine
                                            emission control from the full set of                   centered on packaging catalysts in the
                                            Marine SI engines.                                                                                            category. The new definition for
                                                                                                    water-jacketed, wet exhaust systems                   sterndrive/inboard also is drafted to
                                               We believe this is an appropriate time               seen on most SD/I engines. Section III.G
                                            to set standards for SD/I engines, for                                                                        include all engines not otherwise
                                                                                                    discusses recent development work that                classified as outboard or personal
                                            several reasons. First, the available                   has shown success in packaging
                                            technology for SD/I engines has                                                                               watercraft engines.
                                                                                                    catalysts in SD/I applications. In                       The new definition has several
                                            developed significantly, so we are now                  addition, there are ongoing efforts in
                                            able to anticipate substantial emission                                                                       noteworthy impacts. First, it removes a
                                                                                                    evaluating catalyst technology in SD/I                requirement that only four-stroke
                                            reductions. With the simultaneous
                                                                                                    engines being sponsored by the marine                 engines can qualify as sterndrive/
                                            developments in technology for
                                                                                                    industry, U.S. Coast Guard, and                       inboard engines. We believe limiting the
                                            outboard and personal watercraft
                                                                                                    California ARB.                                       definition to include only four-stroke
                                            engines, we can set standards that
                                            achieve substantial emission reductions                   We are adopting the regulatory                      engines is unnecessarily restrictive and
                                            from all Marine SI engines. Second, now                 requirements for marine spark-ignition                could create an incentive to use two-
                                            that California has adopted standards                   engines in 40 CFR part 1045. These                    stroke (or rotary) engines to avoid
                                            for SD/I engines, the cost impact of                    requirements are similar to the                       catalyst-based standards. Second, it
                                            setting new standards for manufacturers                 regulations that have been in place for               removes limitations caused by reference
                                            serving the California market is                        outboard and personal watercraft                      to propellers. The definition should not
                                            generally limited to the hardware costs                 engines for several years, but include                refer specifically to propellers, because
                                            of adding emission control technology;                  updated certification procedures, as                  there are other propulsion drives on
                                            these manufacturers will be undergoing                  described in Section IV.A. Engines and                marine vessels, such as jet drives, that
                                            a complete redesign effort for these                    vessels subject to part 1045 are also                 could be used with SD/I engines. Third,
                                            engines to meet the California                          subject to the general compliance                     as explained in the section on the OB/
                                            standards. Third, while an emission                     provisions in 40 CFR part 1068. These                 PWC definitions, the new definitions
                                            control program for SD/I engines will                   include prohibited acts and penalties,                treat engines installed in open-bay
                                            increase the price of these engines, we                 exemptions and importation provisions,                vessels (e.g. jet boats) and in vessels
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                                            no longer think this will result in a                   selective enforcement audits, defect                  over 4 meters long as SD/I engines.
                                            market shift to higher-emitting outboard                reporting and recall, and hearing                     Finally, the definition in part 91 does
                                            engines. The economic impact analysis                   procedures. See Section VIII of the                   not clearly specify how to treat specialty
                                            performed for this final rule,                          preamble to the proposed rule for                     vessels such as airboats or hovercraft
                                            summarized in Section XII, suggests that                further discussion of these general                   that use engines similar to those in
                                            the prices will increase less than 1                    compliance provisions.                                conventional SD/I applications. The

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                                            59050            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            definition of personal watercraft grants                more carefully differentiating                        engine is exempt from standards,
                                            EPA the discretion to classify engines as               competition and noncompetition                        subject to certain limitations. For
                                            SD/I engines if the engine is comparable                models in ways that reflect the nature of             example, an individual may produce
                                            in technology and emissions to an                       the particular products. In the case of               one such vessel over a five-year period,
                                            inboard or sterndrive engine. EPA has                   Marine SI engines, we do not believe                  the vessel may not be used for
                                            used this discretion to classify airboats               there are engine design features that                 commercial purposes, and any exempt
                                            as SD/I engines. See 40 CFR 91.3 for the                allow us to differentiate between                     engines may not be sold for at least five
                                            existing definitions of the marine engine               engines that are used in high-                        years. The vessel must generally be built
                                            classes. We continue to believe these                   performance recreational applications                 from unassembled components, rather
                                            engines share fundamental                               and those that are used solely for                    than simply completing assembly of a
                                            characteristics with traditional SD/I                   competition. Starting January 1, 2009,                vessel that is otherwise similar to one
                                            engines and should therefore be treated                 Marine SI engines meeting all the                     that will be certified to meet emission
                                            the same way. However, we believe the                   following criteria will therefore be                  standards. This exemption does not
                                            definitions should address these                        considered to be used solely for                      apply for freshly manufactured engines.
                                            applications expressly to make clear                    competition:                                          This exemption addresses the concern
                                            which standards apply. We are adopting                     • The engine (or a vessel in which the             that hobbyists who make their own
                                            the following definition:                               engine is installed) may not be                       vessels could otherwise be a
                                               • Sterndrive/inboard engine means a                  displayed for sale in any public                      manufacturer subject to the full set of
                                            spark-ignition engine that is used to                   dealership or otherwise offered for sale              emission standards by introducing these
                                            propel a vessel, but is not an outboard                 to the general public.                                vessels into commerce. We expect this
                                            engine or a personal watercraft engine.                    • Sale of the vessel in which the                  exemption to involve a very small
                                            A sterndrive/inboard engine may be                      engine is installed must be limited to                number of vessels. We revised the
                                            either a conventional sterndrive/inboard                professional racers or other qualified                provisions of the personal-use
                                            engine or a high-performance engine.                    racers.                                               exemption since the proposal to allow
                                            Engines on propeller-driven vessels, jet                   • The engine must have performance                 people to build a vessel with an
                                            boats, air boats, and hovercraft are all                characteristics that are substantially                exempted engine once every five years
                                            sterndrive/inboard engines.                             superior to noncompetitive models (e.g.               instead of ten years. We believe this is
                                               SD/I high-performance engines are                    higher power-to-weight ratio).                        more reflective of a hobbyists interest in
                                            generally characterized by high-speed                      • The engines must be intended for                 building a boat and using it before
                                            operation, supercharged air intake,                     use only in racing events sanctioned                  moving on to the next building project.
                                            customized parts, very high power                       (with applicable permits) by the Coast
                                            densities, and a short time until rebuild               Guard or other public organization, with              C. Exhaust Emission Standards
                                            (50 to 200 hours). Based on current SD/                 operation limited to racing events,                      We are adopting technology-based
                                            I product offerings, we are defining a                  speed record attempts, and official time              exhaust emission standards for new SD/
                                            high-performance engine as an SD/I                      trials.                                               I engines. These standards are similar to
                                            engine with maximum power above 373                        We are also including a provision                  the exhaust emission standards that
                                            kW (500 hp) that has design features to                 allowing us to approve an exemption for               California ARB recently adopted (see
                                            enhance power output such that the                      cases in which an engine manufacturer                 Section I). This section describes the
                                            expected operating time until rebuild is                can provide clear and convincing                      provisions related to controlling exhaust
                                            substantially shorter than 480 hours.                   evidence that an engine will be used                  emissions from SD/I engines. See
                                                                                                    solely for competition even though not                Section VI for a description of the new
                                            (2) Exclusions and Exemptions                           all the above criteria apply for a given              requirements related to evaporative
                                               We are extending our basic nonroad                   situation. This may occur, for example,               emissions.
                                            exemptions to the SD/I engines and                      if a racing association specifies a
                                            vessels covered by this rule. These                     particular engine model in their                      (1) Standards and Dates
                                            include the testing exemption, the                      competition rules, where that engine                     We are adopting exhaust emission
                                            manufacturer-owned exemption, the                       has design features that prevent it from              standards of 5.0 g/kW-hr HC+NOX and
                                            display exemption, and the national-                    being certified or from being used for                75 g/kW-hr CO for SD/I engines, starting
                                            security exemption. If the conditions for               purposes other than competition.                      with the 2010 model year (see
                                            an exemption are met, then the engine                      Engine manufacturers will make their               § 1045.105). On average, this represents
                                            is not subject to the exhaust emission                  request for each new model year. We                   about a 70 percent reduction in
                                            standards.                                              will deny a request for future                        HC+NOX and a 50 percent reduction in
                                               In the rulemaking for recreational                   production if there are indications that              CO from baseline engine configurations.
                                            vehicles, we chose not to apply                         some engines covered by previous                      Due to the challenges of controlling CO
                                            standards to hobby products by                          requests are not being used solely for                emissions at high load, the expected
                                            exempting all reduced-scale models of                   competition. Competition engines are                  reduction in CO emissions from low-to
                                            vehicles that are not capable of                        generally produced and sold in very                   mid-power operation is expected to be
                                            transporting a person (67 FR 68242,                     small quantities, so manufacturers                    more than 80 percent. We are providing
                                            November 8, 2002). We are extending                     should be able to identify which engines              additional lead time for small
                                            that same provision to SD/I marine                      qualify for this exemption. We are                    businesses as discussed in Section
                                            engines (see § 1045.5).                                 applying the same criteria to outboard                III.F.2. The new standards are based on
                                               The Clean Air Act provides for                       and personal watercraft engines and                   the same duty cycle that currently is in
                                            different treatment of engines used                     vessels. See § 1045.620.                              place for outboard and personal
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                                            solely for competition. Rather than                        We are adopting a new exemption to                 watercraft engines, as described in
                                            relying on engine design features that                  address individuals who manufacture                   Section III.D. Section III.G discusses the
                                            serve as inherent indicators of dedicated               recreational marine vessels for personal              technological feasibility of these
                                            competitive use, as specified in the                    use (see § 1045.630). Under this                      standards in more detail.
                                            current regulations, we have taken the                  exemption, someone may install a used                    The new standards are largely based
                                            approach in more recent programs of                     engine in a new vessel where that                     on the use of small catalytic converters

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                        59051

                                            that can be packaged in the water-                      needs are not available in the interim,               engines is not practical. California ARB
                                            cooled exhaust systems typical for these                and that it will be cost-prohibitive for              initially adopted the same HC+NOX
                                            applications. California ARB also                       them to produce their own engine                      standards that apply for other SD/I
                                            adopted an HC+NOX standard of 5 g/                      blocks.                                               engines with the expectation that
                                            kW-hr, starting with 2008 model year                       EPA’s SD/I standards start to take                 manufacturers would simply rely on
                                            engines, but they did not adopt a                       effect with the 2010 model year, two                  emission credits from other SD/I
                                            standard for CO emissions. We believe                   years after the same standards apply in               engines. We believe a credit-based
                                            the type of catalyst used to achieve the                California. We believe a requirement to               solution is not viable for small business
                                            HC+NOX standard will also be effective                  extend the California standards                       manufacturers that do not have other
                                            in reducing CO emissions enough to                      nationwide after a two-year delay allows              products with which to exchange
                                            meet the new standard with the proper                   manufacturers adequate time to                        emission credits and California ARB has
                                            calibrations, so no additional hardware                 incorporate catalysts across their                    modified their rule to also address this
                                            will be needed to control CO emissions.                 product lines as they are doing in                    concern.
                                               Manufacturers have expressed                         California. Once the technology is                       We are adopting standards for SD/I
                                            concern that the implementation dates                   developed for use in California, it will              high-performance engines based on the
                                            may be difficult to meet, for certain                   be available for use nationwide soon                  level of control that can be expected
                                            engines, due to anticipated changes in                  thereafter. In fact, one company                      from recalibration with electronically
                                            engine block designs produced by                        currently certified to the California                 controlled fuel injection. These
                                            General Motors. As described in the                     standards is already offering catalyst-               standards are phased in over a two-year
                                            Final RIA and in the docket, the vast                   equipped SD/I engines nationwide. To                  transition period. In the 2010 model
                                            majority of SD/I engines are based on                   address the challenge related to the                  year, the HC+NOX emission standards
                                            automotive engine blocks sold by                        transition away from the current 4.3 and              are 20.0 g/kW-hr for engines at or below
                                            General Motors.93 There are five basic                  8.1 liter GM engines, we are including                485 kW and 25.0 g/kW-hr for bigger
                                            engine blocks used, and recently GM                     in the final rule a direct approval for a             engines. In 2011 and later model years,
                                            announced that it plans to discontinue                  hardship exemption allowing                           the HC+NOX emission standards drop to
                                            production of the 4.3L and 8.1L engine                  manufacturers to produce these engines                16.0 g/kW-hr for engines at or below 485
                                            blocks. GM anticipates that it will offer               for one additional year without                       kW and 22.0 g/kW-hr for bigger engines.
                                            a 4.1L engine block and a 6.0L                          certifying them (see § 1045.145).                     The CO standard is 350 g/kW-hr for all
                                            supercharged engine block to the marine                 Starting in the 2011 model year, we                   SD/I high-performance engines. We
                                            industry as replacements. Full-run                      would expect manufacturers to have                    believe this is achievable with more
                                            production of these new blocks is                       worked things out such that they could                careful control of fueling rates,
                                            anticipated around the time that                        certify their full product lineup to the              especially under idle conditions.
                                            manufacturers will be making the                        applicable standards.                                 Control of air-fuel ratios should result in
                                            transition to meeting new EPA emission                     Engines used on jet boats may have                 improved emission control even after
                                            standards. SD/I engine manufacturers                    been classified under the original                    multiple rebuilds. Note that small-
                                            have expressed concern that they will                   definitions as personal watercraft                    volume manufacturers may delay
                                            not be able to begin the engineering                    engines. As described in Section IV,                  complying with the high-performance
                                            processes related to marinizing these                   engines used in jet boats or personal                 standards until 2013. In that year, the
                                            engines, including the development of                   watercraft-like vessels that are four                 standard will be the same as the 2011
                                            catalyst-equipped exhaust manifolds,                    meters or longer will be classified as                standards for larger manufacturers.
                                            until they see the first prototypes of the              SD/I engines under the new definitions.                  We are adopting a variety of
                                            two replacement engine models. In                       Such engines subject to part 91 today                 provisions to simplify the requirements
                                            addition, they are concerned that they                  will therefore need to continue meeting               for exhaust emission certification and
                                            do not have enough remaining years of                   EPA emission standards as personal                    compliance for SD/I high-performance
                                            sales of the 4.3L and 8.1L engines to                   watercraft engines through the 2009                   engines, as described in Section IV.F.
                                            justify the cost of developing catalyst-                model year under part 91, after which                 We have also chosen not to apply the
                                            equipped exhaust manifolds for these                    they will need to meet the new SD/I                   Not-to-Exceed emission standards to
                                            engines and amortizing the costs of the                 standards under part 1045. This is                    these engines because we have very
                                            required tooling while also developing                  another situation where the transition                limited information on their detailed
                                            the two new engine models.                              period discussed above may be helpful.                emission characteristics and we are
                                               These are unique circumstances                       In contrast, as discussed above, air boats            concerned about extent of testing that
                                            because the SD/I engine manufacturers’                  have been classified as SD/I engines                  would be required by the large number
                                            plans and products depend on the                        under EPA’s discretionary authority and               of affected engine manufacturers that
                                            manufacture of the base engine by a                     are not required to comply with part 91,              are small businesses.
                                            company not directly involved in                        but must meet the new emission                           We are also aware that there are some
                                            marine engine manufacturing. The SD/                    standards for SD/I engines under part                 very small sterndrive or inboard
                                            I sales represent only a small fraction of              1045.                                                 engines. In particular, sailboats may
                                            GM’s total engine sales and thus did not                   As described above, engines used                   have small propulsion engines for
                                            weigh heavily in their decision to                      solely for competition are not subject to             backup power. These engines will fall
                                                                                                    emission standards, but many SD/I                     under the new definition of sterndrive/
                                            replace the existing engine blocks with
                                                                                                    high-performance engines are sold for                 inboard engines, even though they are
                                            two comparable versions during the
                                                                                                    recreational use. SD/I high-performance               much smaller and may experience very
                                            timeframe when the SD/I manufacturers
                                                                                                    engines have very high power outputs,                 different in-use operation. These
                                            are facing new emission standards. SD/
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                                                                                                    large exhaust gas flow rates, and                     engines generally have more in common
                                            I manufacturers have stated that
                                                                                                    relatively high concentrations of                     with marine auxiliary engines or lawn
                                            alternative engine blocks that meet their
                                                                                                    hydrocarbons and carbon monoxide in                   and garden engines that are subject to
                                              93 ‘‘GM Product Changes Affecting SD/I Engine         the exhaust gases. As described in the                land-based standards. We are therefore
                                            Marinizers,’’ memo from Mike Samulski, EPA, to          Final Regulatory Impact Analysis,                     allowing manufacturers to use engines
                                            Docket EPA–HQ–OAR–2004–0008–0528.                       applying catalyst technology to these                 that have been certified to current land-

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                                            59052            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            based emission standards for sterndrive                 conventional SD/I engines must be                     FEL cap is 150 g/kW-hr and applies
                                            and inboard installation, much like we                  certified to meet the NTE standards.                  starting in 2010, except as noted below.
                                            are adopting for outboard and personal                     This NTE approach complements the                  These FEL caps represent the average
                                            watercraft engines (see § 1045.610).                    weighted modal emission tests included                baseline emission levels of SD/I engines,
                                               The emission standards apply at the                  in this rule. These steady-state duty                 based on data described in the Final
                                            range of atmospheric pressures                          cycles and standards are intended to                  RIA. However, through the 2013 model
                                            represented by the test conditions                      establish average emission levels over                year we are separately allowing small-
                                            specified in part 1065. This includes                   several discrete modes of engine                      volume engine manufacturers to certify
                                            operation at elevated altitudes. Since we               operation. Because it is an average,                  their four-stroke conventional SD/I
                                            expect most or all SD/I engines to have                 manufacturers design their engines with               engines without testing by assuming an
                                            three-way catalysts with closed-loop                    emission levels at individual points                  HC+NOX FEL of 22.0 g/kW-hr and a CO
                                            fuel control, these engines should be                   varying as needed to maintain                         FEL of 150 g/kW-hr. Manufacturers
                                            able to include the ability to                          maximum engine performance and still                  using this provision would not be
                                            automatically compensate for varying                    meet the engine standard. The NTE                     subject to the FEL cap for those engine
                                            altitude. Manufacturers may choose to                   limit will be an additional requirement.              families.
                                            use an altitude kit for demonstrating                   It is intended to ensure that emission                   We are specifying that SD/I engines
                                            compliance with emission standards at                   controls function with relative                       are in a separate averaging set from OB/
                                            high altitudes as described for OB/PWC                  consistency across the full range of                  PWC engines, with a limited exception
                                            engines in Section IV.C.1.                              expected operating conditions.                        for certain jet boat engines as described
                                            Manufacturers using altitude kits would                                                                       below. This means that credits earned
                                                                                                    (3) Emission Credit Programs                          by SD/I engines may be used only to
                                            need to take a variety of steps to
                                            describe their approach and ensure that                 (a) Averaging, Banking, and Trading                   offset higher emissions from other SD/
                                            such altitude kits are in fact being used                                                                     I engines. Likewise, credits earned by
                                                                                                       We are adopting provisions for
                                            with in-use engines operating at high                                                                         OB/PWC engines may be used only to
                                                                                                    averaging, banking, and trading of
                                            altitudes, as described in Section IV.E.8.                                                                    offset higher emissions from other OB/
                                                                                                    emission credits for conventional SD/I                PWC engines (except where we allow
                                            (2) Not-to-Exceed Standards                             engines to meet the new HC+NOX and                    those credits to be used for certain jet
                                                                                                    CO standards (see § 1045.105 and part                 boat engines).
                                              We are adopting emission standards                    1045, subpart H). See Section VII.C.5 of                 Emission credits earned for SD/I
                                            that apply over an NTE zone. The NTE                    the preamble to the proposed rule for a               engines will have an indefinite credit
                                            standards are in the form of a multiplier               description of general provisions related             life with no discounting. We consider
                                            times the duty-cycle standard for                       to averaging, banking, and trading                    these emission credits to be part of the
                                            HC+NOX and for CO (see § 1045.105.                      programs. A description of the ABT                    overall program for complying with the
                                            Section III.D.2 gives an overview of the                provisions for the new SD/I standards is              new standards. Given that we may
                                            NTE standards and compliance                            provided in this section.                             consider further reductions beyond
                                            provisions and describes the NTE test                      EPA proposed that manufacturers                    these standards in the future, we believe
                                            procedures.                                             would not be able to earn credits for one             it will be important to assess the ABT
                                              Manufacturers commented that                          pollutant while using credits to comply               credit situation that exists at the time
                                            certification to the NTE standards                      with the emissions standard for another               any further standards are considered.
                                            requires additional testing for engine                  pollutant. The proposed restriction was               Emission credit balances will be part of
                                            models that are already certified to the                modeled on similar requirements in                    the analysis for determining the
                                            new emission standards for California.                  other ABT programs where there was                    appropriate level and timing of new
                                            In addition, they expressed concern that                concern that a manufacturer could use                 standards, consistent with the statutory
                                            they may need to recalibrate existing                   technologies to reduce one pollutant                  requirement to establish standards that
                                            engine models to meet the NTE                           while increasing another pollutant.                   represent the greatest degree of emission
                                            standards. Manufacturers commented                      Manufacturers are expected to comply                  reduction achievable, considering cost,
                                            that this would not be possible by the                  with the new SD/I standards by using a                safety, lead time, and other factors. If we
                                            date of the duty cycle standard. For                    combination of improved engine                        were to allow the use of credits
                                            engines already certified in California,                designs and catalysts. This should result             generated under the standards adopted
                                            manufacturers carry over preexisting                    in reductions in both HC+NOX                          in this rule to meet more stringent
                                            certification test data from year to year.              emissions and CO emissions compared                   standards adopted in a future
                                            Manufacturers commented that                            to current designs. While the technology              rulemaking, we may need to adopt
                                            additional time would be necessary to                   is expected to reduce both HC+NOX                     emission standards at more stringent
                                            retest, and potentially recalibrate, these              emissions and CO emissions, there                     levels or with an earlier start date than
                                            engines for certification to the NTE                    could be situations where the engines                 we would absent the continued use of
                                            standards. To address these issues                      are capable of meeting one of the                     existing emission credits, depending on
                                            regarding lead time needed to retest                    emission standards but not the other.                 the level of emission credit banks.
                                            these engines, we are not applying the                  EPA does not want to preclude such                    Alternatively, we may adopt future
                                            NTE standards for 2010–2012 model                       engines from being able to certify using              standards without allowing the use of
                                            year engines that are certified using                   the provisions of the ABT program and                 existing emission credits.
                                            preexisting data (i.e., carryover engine                is therefore dropping the proposed                       Finally, manufacturers may include as
                                            families). For new engine models,                       restriction from the final rule.                      part of their federal credit calculation
                                            manufacturers indicated that they will                     Credit generation and use is                       the sales of engines in California as long
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                                            be able to perform the NTE testing and                  calculated based on the FEL of the                    as they don’t separately account for
                                            duty-cycle testing as part of their efforts             engine family and the standard. We are                those emission credits under the
                                            to certify to the new standards.                        adopting FEL caps to prevent the sale of              California regulations. We originally
                                            Therefore the primary implementation                    very high-emitting engines. The                       proposed to exclude engines sold in
                                            date of 2010 applies to these engines.                  HC+NOX FEL cap for conventional SD/                   California that are subject to the
                                            Beginning in the 2013 model year, all                   I engines is 16 g/kW-hr while the CO                  California ABR standards. However, we

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                      59053

                                            consider California’s current HC+NOX                    credits [grams] = (16–5) mu Power [kW]                United States from those related engine
                                            standards to be equivalent to those we                  × Useful Life [hours] × Load Factor ×                 families are sold for use as outboard or
                                            are adopting in this rulemaking, so we                  1.5. The specified load factor is 0.207,              personal watercraft engines (see
                                            would expect a widespread practice of                   which is currently used in the OB/PWC                 § 1045.660 and § 1045.701).
                                            producing and marketing 50-state                        calculations.                                         Manufacturers will need to group SD/I
                                            products. Therefore, as long as a                          To earn these early credits, the engine            engines used for jet boats in a separate
                                            manufacturer is not generating credits                  must meet both the new HC+NOX                         engine family from the outboard or
                                            under California’s regulations for SD/I                 standard and the new CO standard.                     personal watercraft engines to ensure
                                            engines, we would allow manufacturers                   These early credits will be treated the               proper labeling and calculation of
                                            to count those engines when calculating                 same as emission credits generated after              emission credits, but manufacturers
                                            credits under EPA’s program. This is                    the emission standards start to apply.                could rely on emission data from the
                                            consistent with how EPA allows credits                  This approach provides an incentive for               same prototype engine for certifying
                                            to be calculated in other nonroad                       manufacturers to pull ahead                           both engine families.
                                            sectors, such as recreational vehicles.                 significantly cleaner technologies. We                  Finally, manufacturers of jet boat
                                                                                                    believe such an incentive will lead to                engines subject to SD/I standards and
                                            (b) Early-Credit Approaches                             early introduction of catalysts on SD/I               using credits from outboard or personal
                                              We are adopting an early-credit                       engines and help promote earlier market               watercraft engines must certify these jet
                                            program in which a manufacturer could                   acceptance of this technology. We                     boat engines to an FEL that meets or
                                            earn emission credits before 2010 with                  believe this early credit program will                exceeds the newly adopted standards
                                            early introduction of emission controls                 allow manufactures to comply with the                 for outboard and personal watercraft
                                            designed to meet the new standards (see                 new standards in an earlier time frame                engines. This limits the degree to which
                                            § 1045.145). For engines produced by                    because it allows them to spread out                  manufacturers may take advantage of
                                            small-volume SD/I manufacturers that                    their development resources over                      emission credits to produce engines that
                                            are eligible for the one-year delay                     multiple years. To ensure that                        are emitting at higher levels than
                                            described in Section III.F.2, early credits             manufacturers do not generate credits                 competitive engines.
                                            could be earned before 2011. As                         for meeting standards that already
                                            proposed, use of these early credits                    apply, no EPA credits will be generated               (d) SD/I High-Performance Engines
                                            would be limited to the first three years               for engines that are produced for sale in                For the reasons described in Section
                                            that the new standards apply. While we                  California.                                           III.C.1, the standards being adopted for
                                            believe adequate lead time is provided                                                                        SD/I high-performance engines are less
                                            to meet the new standards, we recognize                 (c) Jet Boats
                                                                                                                                                          stringent than originally proposed. As a
                                            that flexibility in timing could help                      Sterndrive and inboard vessels are                 result, we are not including the SD/I
                                            some manufacturers—particularly small                   typically propelled by traditional SD/I               high-performance engines in the ABT
                                            manufacturers—to meet the new                           engines based on automotive engine                    program. Manufacturers are required to
                                            standards. Other manufacturers that are                 blocks. As explained in Section IV, we                meet the emission standards for SD/I
                                            able to comply early on certain models                  are changing the definition of personal               high-performance engines without using
                                            will be better able to transition their full            watercraft to ensure that engines used                emission credits.
                                            product line to the new standards by                    on jet boats will no longer be classified
                                            spreading out the transition over two                   as personal watercraft engines but                    (4) Crankcase Emissions
                                            years or more. Under this approach, we                  instead as SD/I engines because jet boats                Due to blowby of combustion gases
                                            anticipate that manufacturers will                      are more like SD/I vessels. However,                  and the reciprocating action of the
                                            generate credits through the use of                     manufacturers in many cases make                      piston, exhaust emissions can
                                            catalysts.                                              these jet boats by installing an engine               accumulate in the crankcase.
                                              Manufacturers will generate these                     also used in outboard or personal                     Uncontrolled engine designs route these
                                            early credits based on the difference                   watercraft applications (less than 4                  vapors directly to the atmosphere.
                                            between the measured emission level of                  meters in length) and coupling the                    Closed crankcases have become
                                            the clean engines and an assigned                       engine to a jet drive for propelling the              standard technology for automotive
                                            baseline level (16 g/kW-hr HC+NOX and                   jet boat. Thus, manufacturers of                      engines and for outboard and personal
                                            150 g/kW-hr CO). These assigned                         outboard or personal watercraft engines               watercraft engines. Manufacturers
                                            baseline levels are based on data                       may also manufacture the same or a                    generally do this by routing crankcase
                                            presented in Chapter 4 of the Final RIA                 similar engine for use on what we                     vapors through a valve into the engine’s
                                            representing the average level observed                 consider to be a jet boat.                            air intake system. We are requiring
                                            for uncontrolled engines. We also                          Engines used in jet boats will be                  manufacturers to prevent crankcase
                                            provide bonus credits for any small-                    subject to SD/I emission standards.                   emissions from SD/I marine engines (see
                                            volume SD/I engine manufacturer that                    However, we are providing some                        § 1045.115). Because automotive engine
                                            certifies early to the new standards to                 flexibility in meeting the new emission               blocks are already tooled for closed
                                            provide a further incentive for                         standards for jet boat engines because                crankcases, the cost of adding a valve
                                            introducing catalysts in SD/I engines.                  they are currently designed to use                    for positive crankcase ventilation is
                                            The bonus credits will take the form of                 engines derived from OB/PWC                           small for SD/I engines. Even with non-
                                            a multiplier times the earned credits.                  applications and because of their                     automotive blocks, the tooling changes
                                            The multipliers are 1.25 for being one                  relatively low sales volumes. We will                 necessary for closing the crankcase are
                                            year early, 1.5 for being two years early,              allow manufacturers to use emission                   straightforward.
                                            and 2.0 for being three years early. For                credits generated from OB/PWC engines
                                                                                                                                                          (5) Durability Provisions
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                                            example, a small-volume manufacturer                    to demonstrate that their jet boat
                                            certifying an engine to 5.0 g/kW-hr                     engines meet the new HC+NOX and CO                      We rely on pre-production
                                            HC+NOX in 2009 (two years early) will                   standards for SD/I engines if the same                certification, and other programs, to
                                            get a bonus multiplier of 1.5. Early                    or similar engine is certified as an                  ensure that engines control emissions
                                            HC+NOX credits will therefore be                        outboard or personal watercraft engine,               throughout their intended lifetime of
                                            calculated using the following equation:                and if the majority of units sold in the              operation. Section VII of the preamble to

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                                            59054            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            the proposed rule describes how we                      250 hours of operation, this will form                around stoichiometry. Worn or broken
                                            require manufacturers to incorporate                    the basis for establishing a shorter                  components or drifting calibrations over
                                            laboratory aging in the certification                   useful life period for those engines. See             time can prevent an engine from
                                            process, how we limit the extent of                     § 1045.105 for additional detail in                   operating within the specified range.
                                            maintenance that manufacturers may                      establishing a shorter useful life.                   This increases emissions and can lead to
                                            specify to keep engines operating as                      Jet boat engines that are certified in              significantly increased fuel
                                            designed, and other general provisions                  conjunction with outboard or personal                 consumption and engine wear. The
                                            related to certification. The following                 watercraft engine families are subject to             operator may or may not notice the
                                            sections describe additional provisions                 the shorter useful life period that
                                                                                                                                                          change in the way the engine operates.
                                            that are specific to SD/I engines.                      applies for outboard or personal
                                                                                                                                                          We are not requiring similar diagnostic
                                                                                                    watercraft engines. This is necessary to
                                            (a) Useful Life                                         prevent a situation where the original                controls for OB/PWC engines because
                                               We are specifying a useful life period               certification data is insufficient for                the anticipated emission control
                                            of ten years or 480 hours of engine                     certifying the jet boat engines without               technologies for these other applications
                                            operation, whichever comes first (see                   some further testing or analysis to show              are generally less susceptible to drift
                                            § 1045.105). Manufacturers are                          that the engines meet emission                        and gradual deterioration. We have
                                            responsible for meeting emission                        standards over a longer period.                       adopted similar diagnostic requirements
                                            standards during this useful life period.                                                                     for Large SI engines operating in
                                            This is consistent with the requirements                (b) Warranty Periods                                  forklifts and other industrial equipment
                                            adopted by California ARB. We are                          We are requiring that manufacturers                that also use three-way catalysts to meet
                                            further requiring that the 480-hour                     provide an emission-related warranty                  emission standards.
                                            useful life period is a baseline value,                 during the first three years or 480 hours
                                                                                                                                                             This diagnostic requirement focuses
                                            which may be extended if data show                      of engine operation, whichever comes
                                                                                                    first (see § 1045.120). This warranty                 solely on maintaining stoichiometric
                                            that the average service life for engines
                                            in the family is longer. For example, we                period applies equally to emission-                   control of air-fuel ratios. This kind of
                                            may require that the manufacturer                       related electronic components on SD/I                 design detects problems such as broken
                                            certify the engine over a longer useful                 high-performance engines. However, we                 oxygen sensors, leaking exhaust pipes
                                            life period that more accurately                        are allowing shorter warranty periods                 (upstream of sensors and catalysts), fuel
                                            represents the engines’ expected                        (in hours) for emission-related                       deposits, and other things that require
                                            operating life if we find that in-use                   mechanical components on SD/I high-                   maintenance to keep the engine at the
                                            engines are typically operating                         performance engines because these parts               proper air-fuel ratio.
                                            substantially more than 480 hours. This                 are expected to wear out more rapidly                    Diagnostic monitoring provides a
                                            approach is similar to what we adopted                  than comparable parts on traditional                  mechanism to help keep engines tuned
                                            for recreational vehicles.                              SD/I engines. Specifically, we are                    to operate properly, with benefits for
                                               For SD/I high-performance engines,                   specifying a warranty period for                      both controlling emissions and
                                            we are specifying a useful life of 150                  emission-related mechanical                           maintaining optimal performance. There
                                            hours or 3 years for engines at or below                components of 3 years or 150 hours for                are currently no inspection and
                                            485 kW and a useful life of 50 hours or                 high-performance engines between 373
                                            1 year for engines above 485 kW. Due                                                                          maintenance programs for marine
                                                                                                    and 485 kW, and 1 year or 50 hours for
                                            to the high power and high speed of                                                                           engines, so the most important variable
                                                                                                    high-performance engines above 485
                                            these engines, mechanical parts are                     kW. These warranty periods are the                    in making the emission control and
                                            often expected to wear out quickly. For                 same as those adopted by the California               diagnostic systems effective is getting
                                            instance, one manufacturer indicated                    ARB.                                                  operators to repair the engine when the
                                            that some engines above 485 kW have                        If the manufacturer offers a longer                diagnostic light comes on. This calls for
                                            scheduled head rebuilds between 50                      warranty for the engine or any of its                 a relatively simple design to avoid
                                            and 75 hours of operation. These useful                 components at no additional charge, we                signaling false failures as much as
                                            life values are consistent with the                     require that the emission-related                     possible. The diagnostic requirements in
                                            California ARB regulations for SD/I                     warranty for the respective engine or                 this final rule, therefore, focus on
                                            high-performance engines.                               component must be extended by the                     detecting inappropriate air-fuel ratios,
                                               Some SD/I engines below 373 kW                       same amount. The emission-related                     which is the most likely failure mode
                                            may be designed for high power output                   warranty includes components related                  for three-way catalyst systems. The
                                            even though they do not reach the                       to controlling exhaust, evaporative, and              malfunction indicator must go on when
                                            power threshold to qualify as SD/I high-                crankcase emissions from the engine.                  an engine runs for a full minute under
                                            performance engines. Because they do                    These warranty requirements are                       closed-loop operation without reaching
                                            not qualify for the shorter useful life                 consistent with provisions that apply in              a stoichiometric air-fuel ratio.
                                            that applies to SD/I high-performance                   most other programs for nonroad
                                            engines, they will be subject to the                                                                             California ARB has adopted
                                            default value of 480 hours for other SD/                                                                      diagnostic requirements for SD/I
                                            I engines. However, to address the                      (6) Engine Diagnostics                                engines that involve a more extensive
                                            limited operating life for engines that                   We are requiring that manufacturers                 system for monitoring catalyst
                                            are designed for especially high power                  design their catalyst-equipped SD/I                   performance and other parameters. We
                                            output, we are allowing manufacturers                   engines to diagnose malfunctioning                    will accept a California-approved
                                            to request a shorter useful life for such               emission control systems starting with                system as meeting EPA requirements.
                                                                                                                                                          The final regulations direct
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                                            an engine family based on information                   the introduction of the final standards
                                            showing that engines in the family                      (see § 1045.110). As discussed in the                 manufacturers to follow standard
                                            rarely operate beyond the requested                     Final RIA, three-way catalyst systems                 practices defined in documents adopted
                                            shorter period. For example, if engines                 with closed-loop fueling control work                 recently by the Society of Automotive
                                            designed for extremely high-                            well only when the air-fuel ratios are                Engineers in SAE J1939–5. See
                                            performance are typically rebuilt after                 controlled to stay within a narrow range              § 1045.110 for detailed information.

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                       59055

                                            D. Test Procedures for Certification                    without removing the engine from the                     We believe there are significant
                                                                                                    vessel because the NTE requirements                   advantages to establishing NTE
                                            (1) General Provisions
                                                                                                    establish an objective standard and an                standards. The final NTE test procedure
                                               The marine engine test procedures are                easily implemented test procedure. Our                is flexible, so it can represent the
                                            generally the same for both SD/I and                    traditional approach has been to set a                majority of in-use engine operation and
                                            OB/PWC engines. This involves                           numerical standard on a specified test                ambient conditions. The NTE approach
                                            laboratory measurement of emissions                     procedure and rely on the additional                  thus takes all the benefits of a numerical
                                            while the engine operates over the ISO                  prohibition of defeat devices to ensure               standard and test procedure and
                                            E4 duty cycle. This is a five-mode                      in-use control over a broad range of                  expands it to cover a broad range of
                                            steady-state duty cycle including an idle               operation not included in the test                    conditions. Also, laboratory testing
                                            mode and four modes lying on a                          procedure. We are establishing the same               makes it harder to perform in-use testing
                                            propeller curve with an exponent of 2.5,                prohibition on defeat devices for OB/                 because either the engines will have to
                                            as shown in Appendix II to part 1045.                   PWC and SD/I engines (see § 1045.115).                be removed from the vessel or care will
                                            The International Organization for                         No single test procedure or test cycle             have to be taken to achieve laboratory-
                                            Standardization (ISO) intended for this                 can cover all real-world applications,                type conditions on the vessel. With the
                                            cycle to be used for recreational spark-                operations, or conditions. Yet to ensure              NTE approach, in-use testing and
                                            ignition marine engines installed in                    that emission standards are providing                 compliance become much easier since
                                            vessels up to 24 m in length. Because                   the intended benefits in use, we must                 emissions may be sampled during
                                            most or all vessels over 24 m have diesel               have a reasonable expectation that                    normal boating. By establishing an
                                            engines, we believe the E4 duty cycle is                emissions under real-world conditions                 objective measurement, this approach
                                            most appropriate for SD/I engines                       reflect those measured on the test                    makes enforcement of defeat device
                                            covered by this rule. There may be some                 procedure. The defeat device                          provisions easier and provides more
                                            spark-ignition engines installed in                     prohibition is designed to ensure that                certainty to the industry.
                                            vessels somewhat longer than 24 m, but                  emission controls are employed during                    Even with the NTE requirements, we
                                            we believe the E4 duty cycle is no less                 real-world operation, not just under                  believe it is still appropriate to retain
                                            appropriate in these cases. See Section                 laboratory testing conditions. However,               standards based on the steady-state duty
                                            IV.D for a discussion of adjustments to                 the defeat device prohibition is not a                cycle. This is the standard that we
                                            the test procedures related to the                      quantified standard and does not have                 expect the certified marine engines to
                                            migration to 40 CFR part 1065, testing                  an associated test procedure, so it does              meet on average in use. The NTE testing
                                            with a ramped-modal cycle,                              not have the clear objectivity and ready              is focused more on maximum emissions
                                            determining maximum test speed for                      enforceability of a numerical standard                for segments of operation and, in most
                                            denormalizing the duty cycle, and                       and test procedure. We believe using the              cases, will not require additional
                                            testing at high altitude.                               traditional approach, i.e., using only a              technology beyond what is used to meet
                                               The E4 duty cycle includes a                         standardized laboratory test procedure                the final standards. In some cases, the
                                            weighting of 40 percent for idle. For SD/               and test cycle, makes it difficult to                 calibration of the engine may need to be
                                            I high-performance engines,                             ensure that engines will operate with                 adjusted. We believe that basing the
                                            commenters suggested that these                         the same level of emission control in                 emission standards on a distinct cycle
                                            engines typically have substantial                      use as in the laboratory.                             and using the NTE zone to ensure in-use
                                            auxiliary loads and parasitic losses even                  Because the duty cycle we have                     control creates a comprehensive
                                            when the vessel does not need                           adopted uses only five modes on an                    program.
                                            propulsion power. While the specified                   average propeller curve to characterize                  We believe the technology used to
                                            duty cycle for SD/I high-performance                    marine engine operation, we are                       meet the standards over the five-mode
                                            engines is identical to that for other                  concerned that an engine designed to                  duty cycle, when properly calibrated,
                                            Marine SI engines, we would expect                      that duty cycle will not necessarily                  will meet the caps that apply across the
                                            manufacturers to use the provisions of                  perform the same way over the range of                NTE zone. We therefore do not expect
                                            § 1065.510(b)(3) to target a reference                  speed and load combinations seen on a                 the final NTE standards to cause
                                            torque of 15 percent instead of zero at                 boat. This duty cycle is based on an                  manufacturers to need additional
                                            idle.                                                   average propeller curve, but a marine                 hardware. We believe the NTE standard
                                                                                                    propulsion engine may never be fitted                 will not result in a large amount of
                                            (2) Not-to-Exceed Test Procedures and                   with an ‘‘average propeller.’’ For                    additional testing, because these engines
                                            Standards                                               instance, an engine installed in a                    should be designed to perform as well
                                              We are adopting not-to-exceed (NTE)                   specific boat with a particular propeller             in use as they do over the five-mode
                                            requirements similar to those                           may operate differently based on the                  test. However, our cost analysis in the
                                            established for marine diesel engines.                  design of the boat and how heavily the                Final RIA accounts for some additional
                                            Engines will be required to meet the                    boat is loaded, among other factors.                  testing, especially in the early years, to
                                            NTE standards during normal in-use                         To ensure that engines control                     provide manufacturers with assurance
                                            operation.                                              emissions over a wide range of speed                  that their engines will meet the NTE
                                                                                                    and load combinations normally seen                   requirements.
                                            (a) Concept                                             on boats, we are including a zone under
                                               Our goal is to achieve control of                    the engine’s power curve where the                    (b) Shape of NTE Zone
                                            emissions over a wide range of ambient                  engine may not exceed a specified                       We developed the NTE zone based on
                                            conditions and over the broad range of                  emission limit (see § 1045.105 and                    the range of conditions that these
                                            in-use speed and load combinations that                 § 1045.515). This limit will apply to all             engines typically see in use.
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                                            can occur on a marine engine. This will                 regulated pollutants during steady-state              Manufacturers collected data on several
                                            ensure real-world emission control,                     operation. In addition, we are requiring              engines installed on vessels and
                                            rather than just controlling emissions                  that a wide range of real ambient                     operated under light and heavy load.
                                            under certain laboratory conditions.                    conditions be included in testing with                Chapter 4 of the Final RIA presents this
                                            This allows us to evaluate an engine’s                  this NTE zone. The NTE zone, limit, and               data and describes the development of
                                            compliance during in-use testing                        ambient conditions are described below.               the boundaries and conditions

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                                            59056            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            associated with the NTE zone. Although                  the exhaust is near stoichiometry, and                The shape of this subzone is based on
                                            significant in-use engine operation                     engine manufacturers use closed-loop                  data presented in the RIA on engine
                                            occurs at low speeds, we are excluding                  electronic control to monitor and                     protection strategies.
                                            operation below 40 percent of maximum                   maintain the proper fuel-air ratio in the                Figure III–1 illustrates the final NTE
                                            test speed because brake-specific                       exhaust for optimum catalyst efficiency.              zone for engines equipped with
                                            emissions increase dramatically as                      However, at high power, engine                        catalysts. Section IV.D.5 discusses the
                                            power approaches zero. An NTE limit                     manufacturers must increase the fueling
                                            for low-speed or low-power operation                                                                          NTE test procedures and limits for non-
                                                                                                    rate to reduce the exhaust temperatures.              catalyzed engines. The NTE zones and
                                            will be very hard for manufacturers and                 Otherwise, if the exhaust temperature
                                            EPA to implement in a meaningful way.                                                                         standards apply depending on whether
                                                                                                    becomes too high, exhaust valves and                  the engine has a catalyst or not, so
                                               We anticipate that most, if not all SD/
                                            I engines subject to the NTE standards                  catalysts may be damaged. During rich,                outboard or personal watercraft engines
                                            will use three-way catalytic controls to                open-loop operation at high power, the                may be subject to the NTE approach
                                            meet the exhaust emission standards.                    catalyst is oxygen-limited and less                   described in this section and sterndrive/
                                            For that reason, this discussion focuses                effective at oxidizing HC and CO. To                  inboard engines may be subject to the
                                            on the NTE zone and subzones for                        address the issue of open-loop catalyst               NTE provisions described in Section
                                            catalyst-equipped engines. Catalysts are                efficiency, we created a high power                   IV.D.5. However, we expect these
                                            most effective when the fuel-air ratio in               subzone for catalyst-equipped engines.                situations to be rather uncommon.

                                              The final regulations allow                           reasonably be expected to be seen in                  standards can be modified appropriately
                                            manufacturers to request approval for                   use, and they will be responsible for                 to include this operation for that engine
                                            adjustments to the size and shape of the                ensuring that their specified operation is            family.
                                            NTE zone for certain engines if they can                indicative of real-world operation. EPA
                                            show that the engine will not normally                  testing may include any normal                        (c) NTE Emission Limits
                                            operate outside the revised NTE zone in                 operation observed on in-use vessels,                    We are establishing NTE limits for the
                                            use (see § 1045.515). We do not want                    consistent with the applicable
                                                                                                                                                          individual subzones shown in Figure
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                                            manufacturers to go to extra lengths to                 regulatory provisions. In addition, if a
                                                                                                                                                          III–1 above based on data collected from
                                            design and test their engines to control                manufacturer designs an engine for
                                            emissions for operation that will not                   operation at speeds and loads outside of              several SD/I engines equipped with
                                            occur in use. However, manufacturers                    the NTE zone, the manufacturer is                     catalysts. These data and our analysis
                                            will still be responsible for all operation             required to notify us so the NTE zone                 are presented in Chapter 4 of the Final
                                            of an engine on a vessel that will                      used to comply with the applicable                    RIA. See Section IV.D.5 for a discussion

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                         59057

                                            of NTE limits for engines not equipped                  using technologies that also work                     engines. These field-testing procedures
                                            with catalysts.                                         effectively under the changing speed                  are described further in Section IV.E.2.
                                               For catalyst-equipped engines, the                   and load conditions that may occur. If                  A parameter to consider is the
                                            largest contribution of emissions over                  we find there is substantial transient                minimum sampling time for field
                                            the 5-mode duty cycle comes from                        operation within the NTE zone that                    testing. A longer period allows for
                                            open-loop operation at Mode 1. In                       causes significantly increased emissions              greater accuracy, due mainly to the
                                            addition, the idle point (Mode 5) is                    from installed engines, we will revisit               smoothing effect of measuring over
                                            weighted 40 percent in the 5-mode duty                  this provision in the future.                         several transient events. On the other
                                            cycle, but not included in the NTE zone.                   We are aware that engines may not be               hand, an overly long sampling period
                                            For this reason, brake-specific emissions               able to meet emission standards under                 can mask areas of engine operation with
                                            throughout most of the NTE zone are                     all conditions, such as times when                    poor emission control characteristics.
                                            less than the weighted average from the                 emission control must be compromised                  To balance these concerns, we are
                                            steady-state testing. For most of the NTE               for startability or safety. As with                   applying a minimum sampling period of
                                            zone, we are therefore establishing a                   outboard and personal watercraft                      30 seconds. This is consistent with the
                                            limit equal to the duty-cycle standard                  engines, NTE testing excludes engine                  requirement for marine diesel engines.
                                            (i.e., NTE multiplier = 1.0). This means                starting and warm-up. We are allowing                 Spark-ignition engines generally don’t
                                            that these engines may not have steady-                 manufacturers to design their engines to              have turbochargers and they control
                                            state emissions at any point inside the                 utilize engine protection strategies that             emissions largely by maintaining air-
                                            NTE zone, except in the subzone around                  will not be covered by defeat device                  fuel ratio. Spark-ignition engines are
                                            full-load operation, that exceed the                    provisions or NTE standards. This is                  therefore much less prone to consistent
                                            HC+NOX or CO emission standards.                        analogous to the tampering exemptions                 emission spikes from off-cycle or
                                               Emission data on catalyst-equipped                   incorporated into 40 CFR 1068.101(b)(1)               unusual engine operation. We believe
                                            engines also show higher emissions near                 to address emergencies. We believe it is              the minimum 30 second sampling time
                                            full-power operation. As discussed                      appropriate to allow manufacturers to                 will ensure sufficient measurement
                                            above, this is due to the need for richer               design their engines with ‘‘limp-home’’               accuracy and will allow for meaningful
                                            fuel-air ratios under high-power                        capabilities to prevent a scenario where              measurements.
                                            operation to protect the engines from                   an engine fails to function, leaving an                 We do not specify a maximum
                                            overheating. Under rich conditions, a                   operator on the water without any                     sampling time. We expect
                                            three-way catalyst does not effectively                 means of propulsion.                                  manufacturers testing in-use engines to
                                            oxidize CO emissions. Therefore, we are                                                                       select an approximate sampling time
                                            not setting an NTE limit in Subzone 1                   (e) Ambient Conditions                                before measuring emissions. However,
                                            for CO. Some HC+NOX control is                             Variations in ambient conditions can               for any sampling period, each 30-second
                                            expected in Subzone 1 because a three-                  affect emissions. Such conditions                     period of operation would be subject to
                                            way catalyst will efficiently reduce NOX                include air temperature, water                        the NTE standards. For example,
                                            emissions under rich conditions.                        temperature, barometric pressure, and                 manufacturers may measure emissions
                                            Similar to CO, HC emissions are not                     humidity. We are applying the                         for ten minutes. The engine’s emissions
                                            effectively oxidized in a catalyst during               comparable ranges for these variables as              over the ten-minute period would need
                                            rich operation. We are therefore                        for marine diesel engines (see                        to meet the applicable NTE standards,
                                            establishing a higher NTE limit of 1.5                  § 1045.515). Within the specified ranges,             but each 30-second period of operation
                                            for HC+NOX in Subzone 1. This limit is                  there is no provision to correct emission             during the ten-minute period should
                                            based on emission control performance                   levels to standard conditions. Outside of             also be evaluated to determine that the
                                            during open-loop operation.                             the specified ranges, emissions may be                engine complies.
                                                                                                    corrected back to the nearest end of the
                                            (d) Excluded Operation                                                                                        (g) Certification
                                                                                                    range using good engineering practice.
                                               As with marine diesel engines, only                  The specified ranges are 13 to 35 °C (55                 We are requiring that manufacturers
                                            steady-state operation is included for                  to 95 °F) for ambient air temperature, 5              state in their application for certification
                                            NTE testing (see § 1045.515). Steady-                   to 27 °C (41 to 80 °F) for ambient water              that their engines will comply with the
                                            state operation will generally mean                     temperature, and 94.0 to 103.325 kPa for              NTE standards under any nominally
                                            setting the throttle (or speed control) in              atmospheric pressure. NTE testing may                 steady-state combination of speeds and
                                            a fixed position. We believe most                       take place at any humidity level, but                 loads within the new NTE zone (see
                                            operation with Marine SI engines                        manufacturers may correct for humidity                § 1045.205). The manufacturer must also
                                            involves nominally steady-state operator                effects as described in § 1065.670.                   provide a detailed description of all
                                            demand. It is true that boats often                                                                           testing, engineering analysis, and other
                                            experience rapid accelerations, such as                 (f) Measurement Methods                               information that forms the basis for the
                                            with water skiing. However, boats are                      While it may be easier to test outboard            statement. This statement will be based
                                            typically designed for planing operation                engines in the laboratory, there is a                 on testing and, if applicable, other
                                            at relatively high speeds. This limits the              strong advantage to using portable                    research that supports such a statement,
                                            degree to which we would expect                         measurement equipment to test SD/I                    consistent with good engineering
                                            engines to experience frequent                          engines and personal watercraft without               judgment. We will review the basis for
                                            accelerations during extended                           removing the engine from the vessel.                  this statement during the certification
                                            operation. Also, because most of the                    Field testing will also provide a much                process. For marine diesel engines, we
                                            transient events involve acceleration                   better means of measuring emissions to                have provided guidance that
                                            from idle to reach a planing condition,                 establish compliance with the NTE                     manufacturers may demonstrate
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                                            most transient engine operation is                      standards, because it is intended to                  compliance with NTE standards by
                                            outside the NTE zone and will therefore                 ensure control of emissions during                    testing their engines at a number of
                                            not be covered by NTE testing anyway.                   normal in-use operation that may not                  standard points throughout the NTE
                                            Moreover, we believe OB/PWC and SD/                     occur during laboratory testing over the              zone. In addition, manufacturers must
                                            I engines designed to comply with                       specified duty cycle. We are adopting                 test at a few random points chosen by
                                            steady-state NTE requirements will be                   field-testing provisions for all SD/I                 EPA prior to the testing.

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                                            59058            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            E. Additional Certification and                         routinely test in-use engines, the Clean              19 kW), locomotive engines,
                                            Compliance Provisions                                   Air Act allows us to perform our own                  recreational vehicles, heavy-duty
                                                                                                    testing at any time with in-use engines               evaporative systems, and heavy-duty
                                            (1) Production-Line Testing
                                                                                                    to evaluate whether they continue to                  engines certified only for sale in
                                               There are several factors that have led              meet emission standards throughout the                California. These engine and vehicle
                                            us to conclude that we should not                       useful life. This may involve either                  types were grouped together because
                                            finalize production-line testing                        laboratory testing or in-field testing with           EPA planned a more basic certification
                                            requirements for SD/I engines in this                   portable measurement equipment. For                   review than, for example, for light-duty
                                            rulemaking. First, California ARB has                   laboratory tests, we could evaluate
                                            not yet adopted production-line testing                                                                       motor vehicles.
                                                                                                    compliance with either the duty-cycle
                                            requirements for these engines. Second,                 standards or the not-to-exceed                          EPA determined in the final fees
                                            the companies producing these engines                   standards. For testing with engines that              rulemaking that it was premature to
                                            are predominantly small businesses.                     remain installed on marine vessels, we                assess fees for SD/I engines since they
                                            Third, the relatively short useful life                 will evaluate compliance with the not-                were not yet subject to emission
                                            and small sales volumes limit the                       to-exceed standards. In addition, as                  standards. The fee calculation
                                            overall emissions effect from these                     described above for production-line                   nevertheless includes a projection that
                                            engines. Fourth, we are aware that                      testing, we may require manufacturers                 there will eventually be 25 certificates
                                            marine engines may need additional                      to perform a reasonable degree of                     of conformity annually for SD/I engines.
                                            setup time for testing to simulate the                  testing. This may include testing in-use              We are now formally including SD/I
                                            marine configuration. We do not                         engines.                                              engines in the ‘‘Other Engines and
                                            consider any of these issues to be                                                                            Vehicles’’ category such that the
                                            fundamental, but we believe it is best to               (3) Certification Fees
                                                                                                                                                          baseline fee is $839 for each certificate
                                            defer further consideration of a                          Under our current certification                     of conformity. Note that we will
                                            requirement for production-line testing                 program, manufacturers pay a fee to
                                            until a later rulemaking. This would                                                                          continue to update assessed fees each
                                                                                                    cover the costs for various certification
                                            allow us to better understand the degree                                                                      year, so the actual fee in 2010 and later
                                                                                                    and other compliance activities
                                            of compliance with emission standards,                                                                        model years will depend on these
                                                                                                    associated with implementing the
                                            the effectiveness of diagnostic controls,                                                                     annual calculations (see § 1027.105).
                                                                                                    emission standards. As explained
                                            and California ARB’s interest in                        below, we are assessing EPA’s                         (4) Special Provisions Related to
                                            requiring production-line testing.                      compliance costs associated with SD/I                 Partially Complete Engines
                                            However, we may require the                             engines based on EPA’s existing fees
                                            manufacturer to conduct a reasonable                    regulation. Section VI describes a new                   It is common practice for one
                                            degree of testing under Clean Air Act                   fees category we are adopting, based on               company to produce engine blocks that
                                            section 208 if we have reason to believe                the cost study methodology used in                    a second company modifies for use as
                                            that an engine family does not conform                  establishing EPA’s original fees                      a marine engine. Since our regulations
                                            to the regulations. This testing may take               regulation, for costs related to the final            prohibit the sale of uncertified engines,
                                            the form of a Selective Enforcement                     evaporative emission standards for both               we are establishing provisions to clarify
                                            Audit.                                                  vessels and equipment that are subject                the status of these engines and defining
                                            (2) In-Use Testing                                      to this final rule.                                   a path by which these engines can be
                                                                                                      EPA established a fee structure by                  handled without violating the
                                               Manufacturers of OB/PWC engines                      grouping together various manufacturers
                                            have been required to test in-use                                                                             regulations. See Section VIII.C.1 for
                                                                                                    and industries into fee categories, with              more information.
                                            engines to show that they continue to                   an explanation that separation of
                                            meet emission standards. We                             industries into groups was appropriate                (5) Use of Engines Already Certified to
                                            contemplated a similar requirement for                  to tailor the applicable fee to the level             Other Programs
                                            SD/I engines, but have decided not to                   of effort expected for EPA to oversee the
                                            adopt a requirement for a manufacturer-                 range of certification and compliance                    In some cases, manufacturers may
                                            run in-use testing program at this time.                responsibilities (69 FR 26222, May 11,                want to use engines already certified
                                            Manufacturers have pointed out that it                  2004). As part of this process, EPA                   under our other programs. Engines
                                            would be very difficult to identify a                   conducted a cost analysis to determine                certified to the emission standards for
                                            commercial fleet of boats that could be                 the various compliance activities                     highway applications in part 86 or Large
                                            set up to operate for hundreds of hours                 associated with each fee category and                 SI applications in part 1048 are meeting
                                            because it is very uncommon for                         EPA’s associated annual cost burden.                  more stringent standards. We are
                                            commercial operators to have significant                Once the total EPA costs were                         therefore allowing the pre-existing
                                            numbers of SD/I vessels. Where there                    determined for each fee category, the                 certification to be valid for engines used
                                            are commercial fleets of vessels that                   total number of certificates involved                 in marine applications, on the condition
                                            may be conducive to accelerated in-use                  within a fee category was added                       that the engine is not changed from its
                                            service accumulation, these vessels                     together and divided into the total costs             certified configuration in any way (see
                                            generally use outboard engines.                         to determine the appropriate assessment
                                            Manufacturers could instead hire                                                                              § 1045.605). Manufacturers will need to
                                                                                                    for each anticipated certificate.94 One of            demonstrate that fewer than five percent
                                            drivers to operate the boats, but this                  the fee categories created was for ‘‘Other
                                            may be cost-prohibitive. There is also a                                                                      of the total sales of the engine model are
                                                                                                    Engines and Vehicles,’’ which includes                for marine applications. There are also
                                            question about access to the engines for                marine engines (both compression-                     a few minor notification and labeling
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                                            testing. If engines need to be removed                  ignition and spark-ignition), nonroad
                                            from vessels for testing in the laboratory                                                                    requirements to allow for EPA oversight
                                                                                                    spark-ignition engines (above and below               of this provision. We are adopting
                                            for some reason, it is unlikely that
                                            owners will cooperate.                                    94 See Cost Analysis Document at p. 21 associated
                                                                                                                                                          similar provisions for engines below 19
                                               While we are not establishing a                      with the proposed fees rule (      kW that are certified to Small SI
                                            program to require manufacturers to                     otaq/fees.htm).                                       standards as described in Section III.C.1.

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                       59059

                                            (6) Import-specific Information at                      small entities that will be subject to the            which companies are eligible for the
                                            Certification                                           requirements and the type of                          flexibility options. The following
                                              We are requiring additional                           professional skills necessary for                     section describes the flexibility options
                                            information to improve our ability to                   preparation of the report or record;                  being adopted as part of this final rule
                                            oversee compliance related to imported                     • An identification, to the extent                 and the criteria for determining which
                                            engines (see § 1045.205). In the                        practicable, of all relevant Federal rules            manufacturers are eligible.
                                            application for certification, we require               that may duplicate, overlap, or conflict
                                                                                                    with the rule; and                                    (2) Final Burden Reduction Approaches
                                            the following additional information: (1)                                                                     for Small-Volume SD/I Engine
                                                                                                       • A description of any significant
                                            The port or ports at which the                                                                                Manufacturers
                                                                                                    alternative to the rule that accomplishes
                                            manufacturer has imported engines over
                                                                                                    the stated objectives of applicable                     We are establishing several options
                                            the previous 12 months, (2) the names
                                                                                                    statutes and that minimizes any                       for small-volume SD/I engine
                                            and addresses of the agents the
                                                                                                    significant economic impact of the rule               manufacturers. For purposes of
                                            manufacturer has authorized to import                   on small entities.                                    determining which engine
                                            the engines, and (3) the location of the                   In addition to the EPA’s Small                     manufacturers are eligible for the small
                                            test facilities in the United States where              Business Advocacy Chairperson, the                    business provisions described below for
                                            the manufacturer will test the engines if               Panel consisted of the Director of the                SD/I engine manufacturers, we are
                                            we select them for testing under a                      Assessment and Standards Division of                  adopting a 250 employee limit. EPA
                                            selective enforcement audit. See Section                the Office of Transportation and Air                  believes this limit will cover all the
                                            1.3 of the Summary and Analysis of                      Quality, the Administrator of the Office              existing small business SD/I engine
                                            Comments for further discussion related                 of Information and Regulatory Affairs                 manufacturers (as defined by SBA), but
                                            to naming test facilities in the United                 within the Office of Management and                   places a reasonable limit on how large
                                            States.                                                 Budget, and the Chief Counsel for                     a company could grow before they are
                                            (7) Alternate Fuels                                     Advocacy of the Small Business                        no longer eligible for EPA’s flexibilities
                                                                                                    Administration.                                       for small volume engine manufacturers.
                                              See Section IV.E.7 for a discussion of                   EPA used the size standards provided
                                            requirements that apply to spark-                       by the Small Business Administration                  (a) Additional Lead Time
                                            ignition SD/I engines that operate on                   (SBA) at 13 CFR part 121 to identify                     As recommended in the SBAR Panel
                                            fuels other than gasoline.                              small entities for the purposes of its                report and as proposed, EPA is
                                            F. Small-Business Provisions                            regulatory flexibility analysis.                      establishing an implementation date of
                                                                                                    Companies that manufacture internal-                  2011 for conventional SD/I engines
                                            (1) Small Business Advocacy Review                      combustion engines and that employ
                                            Panel                                                                                                         produced by small volume engine
                                                                                                    fewer than 1000 employees are                         manufacturers. In addition, EPA is
                                              On June 7, 1999, we convened a Small                  considered small businesses for the                   establishing an implementation date of
                                            Business Advocacy Review Panel under                    purpose of the RFA analysis for this                  2013 for SD/I high-performance engines
                                            section 609(b) of the Regulatory                        rule. Equipment manufacturers, boat                   produced by small volume engine
                                            Flexibility Act as amended by the Small                 builders, and fuel system component                   manufacturers (see § 1045.145).
                                            Business Regulatory Enforcement                         manufacturers that employ fewer than
                                            Fairness Act of 1996 (RFA). The                         500 people are considered small                       (b) Exhaust Emission ABT
                                            purpose of the Panel was to collect the                 businesses for the purpose of the RFA                    In the proposal, EPA cited concerns
                                            advice and recommendations of                           analysis for this rule. Based on this                 raised by small businesses that ABT
                                            representatives of small entities that                  information, we asked 25 companies                    could give a competitive advantage to
                                            could be affected by the proposal and to                that met the SBA small business                       large businesses and requested comment
                                            report on those comments and the                        thresholds to serve as small entity                   on the desirability of credit trading
                                            Panel’s findings and recommendations                    representatives for the duration of the               between high-performance and
                                            as to issues related to the key elements                Panel process. Of these 25 companies,                 conventional SD/I marine engines. As
                                            of the Initial Regulatory Flexibility                   13 were involved in the marine                        described earlier in Section III.C.1, EPA
                                            Analysis under section 603 of the                       industry. These companies represented                 is adopting different standards for SD/
                                            Regulatory Flexibility Act. We re-                      a cross-section of SD/I engine                        I high-performance engines than
                                            convened the Panel on August 17, 2006                   manufacturers, boat builders, and fuel                originally proposed. While we are
                                            to update our review for the proposal.                  system component manufacturers.                       adopting an averaging, banking, and
                                            The Panel reports have been placed in                      With input from small entity                       trading (ABT) credit program for
                                            the rulemaking record for this final rule.              representatives, the Panel reports                    conventional SD/I marine engines (see
                                            Section 609(b) of the Regulatory                        provide findings and recommendations                  part 1045, subpart H), SD/I high-
                                            Flexibility Act directs the review Panel                on how to reduce potential burden on                  performance engines are required to
                                            to report on the comments of small                      small businesses that may occur as a                  meet the new standards without an ABT
                                            entity representatives and make findings                result of the proposed rule. The Panel                program.
                                            as to issues related to certain elements                reports are included in the rulemaking
                                                                                                    record for this action. In light of the               (c) Early Credit Generation for ABT
                                            of an initial regulatory flexibility
                                            analysis (IRFA) under RFA section 603.                  Panel report, and where appropriate, we                  As recommended in the SBAR Panel
                                            Those elements of an IRFA are:                          proposed a number of provisions for                   report and as proposed, we are adopting
                                              • A description of, and where                         small business SD/I engine                            an early banking program in which
                                            feasible, an estimate of the number of                  manufacturers. With this final rule we                small volume engine manufacturers can
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                                            small entities to which the rule will                   are adopting many of the flexibility                  earn bonus credits for certifying earlier
                                            apply;                                                  options proposed with some changes                    than required (see § 1045.145). This
                                              • A description of projected                          due to the different standards we are                 program, combined with the additional
                                            reporting, recordkeeping, and other                     adopting for SD/I high-performance                    lead time for small businesses, will give
                                            compliance requirements of the rule,                    engines. In addition, we are making a                 small-volume SD/I engine
                                            including an estimate of the classes of                 change to the criteria for determining                manufacturers ample opportunity to

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                                            59060            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            bank emission credits prior to the                      manufacturer will need to perform                     all SD/I engine manufacturers.
                                            implementation date of the standards                    emission tests only on the engine in that             Therefore, no production-line testing
                                            and will provide greater incentive for                  family that is most likely to exceed an               will be required of any SD/I engine
                                            more small business engine                              emission standard.                                    manufacturer, whether large or small
                                            manufacturers to introduce advanced                                                                           (see § 1045.301).
                                                                                                    (g) Simplified Test Procedures for SD/I
                                            technology earlier across the nation than
                                                                                                    High-Performance Engines                              (i) Hardship Provisions
                                            will otherwise occur. The ABT program
                                            applies only to conventional SD/I                          Existing testing requirements include                 We are adopting two types of
                                            engines so the early credit provisions                  detailed specifications for the                       hardship provisions for SD/I engine
                                            will not apply to SD/I high-performance                 calibration and maintenance of testing                manufacturers, consistent with the
                                            engines.                                                equipment and tolerances for                          Panel recommendations. EPA used the
                                                                                                    performing the actual tests. For                      SBA size standards for purposes of
                                            (d) Assigned Emission Rates for SD/I                    laboratory equipment and testing, these               defining ‘‘small businesses’’ for its
                                            High-Performance Engines                                specifications and tolerances are                     regulatory flexibility analysis. The
                                               In the proposal, EPA noted that                      intended to achieve the most repeatable               eligibility criteria for the hardship
                                            engine manufacturers using emission                     results feasible given testing hardware               provisions described below reflect
                                            credits to comply with the standard will                capabilities. For SD/I high-performance               EPA’s consideration of the Panel’s
                                            still need to test engines to calculate                 engines, EPA is adopting a provision                  recommendations and a reasonable
                                            how many emission credits are needed.                   that allows for different equipment than              application of existing hardship
                                            To minimize this testing burden, we                     is specified for the laboratory and with              provisions. As has been our experience
                                            proposed to allow manufacturers to use                  less restrictive specifications and                   with similar provisions already adopted,
                                            assigned baseline emission rates for                    tolerances more typical of in-use testing             we anticipate that hardship mechanisms
                                            certification based on previously                       (see § 1045.501(h)). These less                       will be used sparingly. First, under the
                                            generated emission data. As discussed                   restrictive specifications will facilitate            unusual circumstances hardship
                                            above, we are adopting less stringent                   less expensive testing for businesses,                provision, any manufacturer subject to
                                            standards for SD/I high-performance                     with little or no negative effect on the              the new standards may apply for
                                            engines that do not allow for the use of                environment. The relaxation on these                  hardship relief if circumstances outside
                                            the ABT program for demonstrating                       specifications is especially helpful for              their control cause the failure to comply
                                            compliance with the standards. We are                   testing high-performance engines due to               and if failure to sell the subject engines
                                            not adopting baseline HC+NOX and CO                     their high exhaust flow rates,                        or equipment or fuel system component
                                            emission rates for SD/I high-                           temperatures, and emission                            would have a major impact on the
                                            performance engines since the proposed                  concentrations. This provision is                     company’s solvency (see § 1068.245).
                                            levels were higher than the standards                   available to all SD/I high-performance                An example of an unusual circumstance
                                            being adopted and therefore are of no                   engine manufacturers, regardless of                   outside a manufacturer’s control may be
                                            use without an ABT program.                             business size.                                        an ‘‘Act of God,’’ a fire at the
                                                                                                                                                          manufacturing plant, or the unforeseen
                                            (e) Alternative Standards for SD/I High-                (h) Reduced Testing Requirements for
                                                                                                                                                          shutdown of a supplier with no
                                            Performance Engines                                     SD/I Engines
                                                                                                                                                          alternative available. The terms and
                                               In the proposal, EPA cited concerns                    We are adopting provisions to allow                 time frame of the relief will depend on
                                            raised by small businesses that catalysts               small-volume engine manufacturers to                  the specific circumstances of the
                                            had not been demonstrated on high-                      use an assigned deterioration factor to               company and the situation involved. As
                                            performance engines and that they may                   demonstrate compliance with the                       part of its application for hardship, a
                                            not be practicable for this application                 standards for certification rather than               company will be required to provide a
                                            and therefore requested comment on the                  doing service accumulation and                        compliance plan detailing when and
                                            need for and level of alternative                       additional testing to measure                         how it will achieve compliance with the
                                            standards for SD/I high-performance                     deteriorated emission levels at the end               standards. This hardship provision will
                                            engines. As described in Section III.C.1,               of the regulatory useful life (see                    be available to all manufacturers of
                                            we are adopting a less stringent set of                 § 1045.240). EPA is not specifying actual             engines, equipment, boats, and fuel
                                            exhaust emission standards for SD/I                     levels for the assigned deterioration                 system components subject to the new
                                            high-performance engines than                           factors in this final rule. EPA intends to            standards, regardless of business size.
                                            originally proposed.                                    analyze available emission deterioration                 Second, an economic hardship
                                               In addition, as described in Section                 information to determine appropriate                  provision allows small businesses
                                            III.C.2, we are not adopting NTE                        deterioration factors for SD/I engines.               subject to the new standards to petition
                                            standards for SD/I high-performance                     The data will likely include durability               EPA for limited additional lead time to
                                            engines (See § 1045.105). This is                       information from engines certified to                 comply with the standards (see
                                            consistent with the SBAR Panel                          California ARB’s standards and may                    § 1068.250). A small business must
                                            recommendation that NTE standards not                   also include engines certified early to               make the case that it has taken all
                                            apply to SD/I high-performance engines.                 EPA’s standards. Prior to the                         possible business, technical, and
                                                                                                    implementation date for the SD/I                      economic steps to comply, but the
                                            (f) Broad Engine Families for SD/I High-                standards, EPA will provide guidance to               burden of compliance costs would
                                            Performance Engines                                     engine manufacturers specifying the                   jeopardize the company’s solvency.
                                               In the proposal, EPA noted that the                  levels of the assigned deterioration                  Hardship relief could include
                                            testing burden could be reduced by                      factors for small-volume engine                       requirements for interim emission
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                                            using broader definitions of engine                     manufacturers.                                        reductions and/or the purchase and use
                                            families. As proposed, we are adopting                    We proposed to exempt small-volume                  of emission credits. The length of the
                                            provisions to allow small businesses to                 manufacturers of SD/I engines from the                hardship relief decided during review of
                                            group all their SD/I high-performance                   production-line testing requirements.                 the hardship application will be up to
                                            engines into a single engine family for                 However, we are dropping the                          one year, with the potential to extend
                                            certification (see § 1045.230). A                       production-line testing requirements for              the relief as needed. We anticipate that

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                       59061

                                            one to two years will normally be                       delay allows manufacturers adequate                   and thermal shock from cold water
                                            sufficient. As part of its application for              time to incorporate catalysts across their            coming into contact with a hot catalyst.
                                            hardship, a company will be required to                 product lines. Once the technology is                 Modern catalysts perform well at
                                            provide a compliance plan detailing                     developed for use in California, it will              temperatures up to 1100 °C, which is
                                            when and how it will achieve                            be available for use nationwide. In fact,             much higher than expected in a marine
                                            compliance with the standards. This                     several engine models currently                       exhaust manifold. These catalysts have
                                            hardship provision will be available                    certified to the California standards are             also been shown to withstand the
                                            only to qualifying small businesses.                    already available with catalysts                      thermal shock of being immersed in
                                              Because boat builders in many cases                   nationwide. As discussed above, we are                water. More detail on catalyst durability
                                            will depend on engine manufacturers to                  accommodating the transition to new                   is presented in the Final RIA. In
                                            supply certified engines in time to                     base engines by agreeing to one year of               addition, use of catalysts in automotive,
                                            produce complying boats, we are also                    hardship relief for companies that                    motorcycle, and handheld equipment
                                            providing a hardship provision for all                  would otherwise need to design and                    has shown that catalysts can be
                                            boat builders, regardless of size, that                 certify an engine for that one year before            packaged to withstand vibration in the
                                            will allow the builder to request more                  it becomes obsolete.                                  exhaust manifold.
                                            time if they are unable to obtain a                                                                              Manufacturers already strive to design
                                                                                                    (3) Technological Approaches                          their exhaust systems to prevent water
                                            certified engine and they are not at fault
                                            and will face serious economic hardship                    Engine manufacturers can adapt                     from reaching the exhaust ports. If too
                                            without an extension (see § 1068.255).                  readily available technologies to control             much water reaches the exhaust ports,
                                                                                                    emissions from SD/I engines.                          significant durability problems will
                                            G. Technological Feasibility                            Electronically controlled fuel injection              result from corrosion or hydraulic lock.
                                            (1) Level of Standards                                  gives manufacturers more precise                      As discussed in the Final RIA, industry
                                                                                                    control of the air/fuel ratio in each                 and government worked on a number of
                                               Over the past few years,                             cylinder, thereby giving them greater                 cooperative test programs in which
                                            developmental programs have                             flexibility in how they calibrate their               several SD/I engines were equipped
                                            demonstrated the capabilities of                        engines. With the addition of an oxygen               with catalysts and installed in vessels to
                                            achieving significant reductions in                     sensor, electronic controls give                      prove out the technology. Early in the
                                            exhaust emissions from SD/I engines.                    manufacturers the ability to use closed-              development work, a study was
                                            California ARB has acted on this                        loop control, which is especially                     performed on an SD/I engine operating
                                            information to set an HC+NOX emission                   valuable when using a catalyst. In                    in a boat to see if water was entering the
                                            standard of 5 g/kW-hr for SD/I engines,                 addition, manufacturers can achieve                   part of the manifold where catalysts will
                                            starting in 2008. At this time, three                   HC+NOX reductions through the use of                  be installed. Although some water was
                                            engine manufacturers have certified SD/                 exhaust gas recirculation. However, the               collected in the exhaust manifold, it was
                                            I engines to these standards. Chapter 4                 most effective technology for controlling             found that this water came from water
                                            of the Final RIA presents data from                     emissions is a three-way catalyst in the              vapor that condensed out of the
                                            these engines as well as detailed data on               exhaust stream.                                       combustion products. This was easily
                                            several developmental SD/I engines                         In SD/I engines, the exhaust                       corrected using a thermostat to prevent
                                            with catalysts packaged within water-                   manifolds are water-jacketed and the                  overcooling from the water jacket.
                                            cooled exhaust manifolds. Four of these                 water mixes with the exhaust stream                      Four SD/I engines equipped with
                                            developmental engines were operated                     before exiting the vessel. Manufacturers              catalysts were operated in vessels for
                                            with catalysts in vessels for 480 hours.                add a water jacket to the exhaust                     480 hours in fresh water. This time
                                            The remaining developmental engines                     manifold to meet temperature-safety                   period was intended to represent the
                                            were tested with catalysts that had been                protocol. They route this cooling water               full expected operating life of a typical
                                            subjected to a rapid-aging cycle in the                 into the exhaust to protect the exhaust               SD/I engine. No significant deterioration
                                            laboratory. Data from these catalyst-                   couplings and to reduce engine noise.                 was observed on any of these catalysts,
                                            equipped engines support the level of                   Catalysts must therefore be placed                    nor was there any evidence of water
                                            the standards.                                          upstream of the point where the exhaust               reaching the catalysts. In addition, the
                                               SD/I high-performance engines have                   and water mix-this ensures the                        catalysts were packaged such that the
                                            very high power outputs, large exhaust                  effectiveness and durability of the                   exhaust system met industry standards
                                            gas flow rates, and relatively high                     catalyst. Because the catalyst must be                for maximum surface temperatures.
                                            concentrations of hydrocarbons and                      small enough to fit in the exhaust                       Testing has been performed on one
                                            carbon monoxide in the exhaust gases.                   manifold, potential emission reductions               engine in a vessel on both fresh water
                                            As a result, we believe it is not practical             are not likely to exceed 90 percent, as               and saltwater over a test protocol
                                            to apply catalyst technology to these                   is common in land-based applications.                 designed by industry to simulate the
                                            engines. We are therefore adopting                      However, as discussed in Chapter 4 of                 worst-case operation for water
                                            standards for SD/I high-performance                     the Final RIA, data on catalyst-equipped              reversion. No evidence was found of
                                            engines based on the level of control                   SD/I engines show that emissions may                  water reaching the catalysts. After the
                                            that can be expected from recalibration                 be reduced by 70 to 80 percent for                    testing, the engine had emission rates
                                            with electronically controlled fuel                     HC+NOX and 30 to 50 percent for CO                    below the HC+NOX standard. We later
                                            injection.                                              over the test cycle. Larger reductions,               engaged in a test program to evaluate
                                                                                                    especially for CO, have been achieved at              three additional engines with catalysts
                                            (2) Implementation Dates                                                                                      in vessels operating on saltwater for
                                                                                                    lower-speed operation.
                                              We anticipate that manufacturers will                    There have been concerns that aspects              extended periods. Early in the program,
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                                            use the same catalyst designs to meet                   of the marine environment could result                two of the three manifolds experienced
                                            the final standards that they will use to               in unique durability problems for                     corrosion in the salt-water environment
                                            meet the California ARB standards for                   catalysts. The primary aspects that                   resulting in water leaks and damage to
                                            SD/I engines in 2008. We believe a                      could affect catalyst durability are                  the catalyst. These manifolds were
                                            requirement to extend the California                    sustained operation at high load,                     rebuilt with guidance from experts in
                                            standards nationwide after a two-year                   saltwater effects on catalyst efficiency,             the marine industry and additional

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                                            59062            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            hours were accumulated on the boats.                    precious metal loading. Past experience               Many of these technologies are capable
                                            Although the accumulated hours are                      indicates that most manufacturers will                of emission levels well below the
                                            well below the 480 hours performed on                   strive to achieve emission reductions                 current standards. We are adopting new
                                            fresh water, the operation completed                    well below the final standards to give                HC+NOX and CO exhaust emission
                                            showed no visible evidence of water                     them certainty that they will pass the                standards for OB/PWC marine engines
                                            reversion or damage to the catalysts.                   standards in-use, especially as catalysts             reflecting the capabilities of these new
                                               Three SD/I engine manufacturers have                 on SD/I engines are a new technology.                 technologies.
                                            certified SD/I engines to the California                Therefore, we do not believe it is                       For outboard and personal watercraft
                                            ARB standards, and some catalyst-                       necessary at this time to set a lower                 engines, the current emission standards
                                            equipped engines are available for                      standard for these engines.                           regulate only HC+NOX emissions. As
                                            purchase nationwide. Manufacturers                         For SD/I high-performance engines,                 described in Section II, we are making
                                            have indicated that they have                           we originally proposed a standard based               the finding under Clean Air Act section
                                            successfully completed durability                       on the use of catalysts and then                      213(a)(3) that Marine SI engines cause
                                            testing, including extended in-use                      considered a less stringent alternative               or contribute to CO nonattainment in
                                            testing on saltwater.                                   based on engine fuel system upgrades,                 two or more areas of the United States.
                                            (4) Regulatory Alternatives                             calibration, or other minor changes such                 We believe manufacturers can use
                                                                                                    as an air injection pump rather than                  readily available technological
                                               In developing the final emission                     catalytic control. However,                           approaches to design their engines to
                                            standards, we considered both what was                  manufacturers commented that catalysts                meet the new standards. In fact, as
                                            achievable without catalysts and what                   are not practical for these engines due               discussed in Chapter 4 of the Final RIA,
                                            could be achieved with larger, more                     to the high exhaust flow rates, high                  manufacturers are already producing
                                            efficient catalysts than those used in our              emission rates, and short time between
                                            test programs. Chapter 4 of the Final                                                                         several models of four-stroke engines
                                                                                                    rebuilds. In the final rule, we are                   and direction-injection two-stroke
                                            RIA presents data on SD/I engines                       establishing standards that can be met
                                            equipped with exhaust gas recirculation                                                                       engines that meet the new standards.
                                                                                                    through the use of engine controls,                   The most important compliance step for
                                            (EGR). HC+NOX emission levels below
                                                                                                    similar to the alternative standard that              the standards will be to retire high-
                                            10 g/kW-hr were achieved for each of
                                                                                                    was analyzed in the proposal. Because                 emitting designs that are still available
                                            the engines. CO emissions ranged from
                                                                                                    we do not consider catalyst-based                     and replace them with these cleaner
                                            25 to 185 g/kW-hr. We believe EGR will
                                                                                                    standards to be feasible for high-                    engines. We are not establishing
                                            be a technologically feasible and cost-
                                                                                                    performance engines at this time, we                  standards based on the use of catalytic
                                            effective approach to reducing
                                                                                                    did not model a more stringent                        converters in OB/PWC engines. While
                                            emissions from SD/I marine engines.
                                                                                                    alternative for these engines.                        this may be an attractive technology in
                                            However, we believe greater reductions
                                            could be achieved through the use of                    (5) Our Conclusions                                   the future, we do not believe there has
                                            catalysts. We considered basing an                                                                            been sufficient development work on
                                                                                                       We believe the final 2010 exhaust                  the application of catalysts to OB/PWC
                                            interim standard on EGR, but were                       emission standards for SD/I engines
                                            concerned that this will divert                                                                               engines to use as a basis for standards
                                                                                                    represent the greatest degree of emission             at this time.
                                            manufacturers’ resources away from                      reduction achievable in this time frame.
                                            catalyst development and could have                                                                              Note that we are migrating the
                                                                                                    Manufacturers of conventional SD/I                    regulatory requirements for marine
                                            the effect of delaying emission
                                                                                                    engines can meet the standards through                spark-ignition engines from 40 CFR part
                                            reductions from this sector.
                                               Several of the marine engines with                   the use of three-way catalysts packaged               91 to 40 CFR part 1045. Manufacturers
                                            catalysts that were tested as part of the               in the exhaust systems upstream of                    must comply with the provisions in part
                                            development of the standards had                        where the water and exhaust mix.                      1045 for an engine once the exhaust
                                            HC+NOX emission rates appreciably                       Manufacturers are already selling                     emission standards begin to apply in
                                            lower that 5 g/kW-hr, even with                         engines with this technology. By 2010                 2010. This gives us the opportunity to
                                            consideration of expected in-use                        there will be widespread experience in                update the details of our certification
                                            emissions deterioration associated with                 applying emission controls to a large                 and compliance program to be
                                            catalyst aging. However, we believe a                   number of engine models.                              consistent with the comparable
                                            standard of 5 g/kW-hr is still                             As discussed in Section VII, we do                 provisions that apply to other engine
                                            appropriate given the potential                         not believe the final standards will have             categories and describe regulatory
                                            variability in in-use performance and in                negative effects on energy, noise, or                 requirements in plain language. Most of
                                            test data. The test programs described in               safety and may lead to some positive                  the change in regulatory text provides
                                            Chapter 4 of the Final RIA did not                      effects.                                              improved clarity without substantially
                                            investigate larger catalysts for SD/I                   IV. Outboard and Personal Watercraft                  changing procedures or compliance
                                            applications. The goal of the testing was               Engines                                               obligations. Where there is a change that
                                            to demonstrate catalysts that will work                                                                       warrants further attention, we describe
                                            within the packaging constraints                        A. Overview                                           the need for the change below.
                                            associated with water jacketing the                       This section applies to spark-ignition                 Engines and vessels subject to part
                                            exhaust and fitting the engines into                    outboard and personal watercraft (OB/                 1045 are also subject to the general
                                            engine compartments on boats.                           PWC) marine engines and vessels. OB/                  compliance provisions in 40 CFR part
                                            However, we did perform testing on                      PWC engines are currently required to                 1068. These include prohibited acts and
                                            engines equipped with both catalysts                    meet the HC+NOX exhaust emissions                     penalties, exemptions and importation
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                                            and EGR. These engines showed                           and other related requirements under 40               provisions, selective enforcement
                                            emission results in the 2–3 g/kW-hr                     CFR part 91. As a result of these                     audits, defect reporting and recall, and
                                            range. We expect that these same                        standards, manufacturers have spent the               hearing procedures. See Section VIII of
                                            reductions could be achieved more                       last several years developing new                     the preamble to the proposed rule for
                                            simply through the use of larger                        technologies to replace traditional                   further discussion of these general
                                            catalysts or catalysts with higher                      carbureted two-stroke engine designs.                 compliance provisions.

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                      59063

                                            B. Engines Covered by This Rule                         submerged during operation and can be                 engine powering a water jet pump as its
                                                                                                    tilted out of the water when not in use.              primary source of propulsion and is
                                            (1) Definition of Outboard and Personal                    Second, engines used on jet boats                  designed with no open load carrying
                                            Watercraft Engines and Vessels                          (with an open bay for passengers) have                area that would retain water. The vessel
                                               The final standards are intended to                  size, power, and usage characteristics                is designed to be operated by a person
                                            apply to outboard marine engines and                    that are very similar to sterndrive and               or persons positioned on, rather than
                                            engines used to propel personal                         inboard applications, but these engines               within the confines of the hull. A vessel
                                            watercraft. We are changing the                         may be the same as OB/PWC engines,                    using an outboard engine as its primary
                                            definitions of outboard and personal                    rather than the marinized automotive                  source of propulsion is not a personal
                                            watercraft to reflect this intent. The                  engines traditionally used on sterndrive              watercraft.
                                            original definitions of outboard engine                 vessels. Because jet boat engines may be                 • Personal watercraft engine means a
                                            and personal watercraft marine engine                   the same as OB/PWC engines, the                       spark-ignition engine used to propel a
                                            adopted in 40 CFR part 91 are presented                 regulations classified them as OB/PWC                 personal watercraft.
                                            below:                                                  engines unless the Agency classified                     Section III.C.3 describes special
                                               • Outboard engine is a Marine SI                     them as SD/I due to comparable                        provisions that will allow
                                            engine that, when properly mounted on                   technology and emissions as SD/I                      manufacturers extra flexibility with
                                            a marine vessel in the position to                      engines. However, as explained in the                 emission credits if they want to
                                            operate, houses the engine and drive                    proposed rule, we believe classifying                 continue using outboard or personal
                                            unit external to the hull of the marine                 such engines as personal watercraft                   watercraft engines in jet boats. These
                                            vessel.                                                 engines is inappropriate because it will              engines will need to meet the standards
                                               • Personal watercraft engine (PWC) is                subject the jet boats to less stringent               for sterndrive/inboard engines, but we
                                            a Marine SI engine that does not meet                   emission standards than other boats                   believe it is appropriate for them to
                                            the definition of outboard engine,                      with similar size, power, and usage                   make this demonstration using emission
                                            inboard engine, or sterndrive engine,                   characteristics, and thus potentially lead            credits generated by other outboard and
                                            except that the Administrator in his or                 to increased use of high-emitting                     personal watercraft engines because
                                            her discretion may classify a PWC as an                 engines in these vessels. Because the                 these vessels are currently using these
                                            inboard or sterndrive engine if it is                   current regulations authorize engines                 engine types.
                                            comparable in technology and                            powering jet boats to be treated as SD/
                                            emissions to an inboard or sterndrive                                                                         (2) Exclusions and Exemptions
                                                                                                    I engines at the discretion of the
                                            engine.                                                 Agency, but do not compel such                           We are maintaining the current
                                               With the implementation of catalyst-                 classification, we are finalizing                     exemptions for OB/PWC engines. These
                                            based standards for sterndrive and                      amendments to the definition to                       include the testing exemption, the
                                            inboard marine engines, we believe the                  explicitly exclude jet boats and their                manufacturer-owned exemption, the
                                            above definitions could be problematic.                 engines from being treated as personal                display exemption, and the national-
                                            Certain applications using SD/I engines                 watercraft engines or vessels. Instead,               security exemption. If the conditions for
                                            and able to apply catalyst control will                 we are classifying jet boat engines as                an exemption are met, the engine is not
                                            not be categorized as SD/I under the                    SD/I engines.                                         subject to the exhaust emission
                                            original definitions in at least two cases.                The new definition conforms to the                 standards. These exemptions are
                                            First, an airboat engine, which is often                definition of personal watercraft                     described in more detail in Section VIII
                                            mounted well above the hull of the                      established by the International                      of the preamble to the proposed rule.
                                            engine and used to drive an aircraft-like               Organization for Standardization (ISO                    The Clean Air Act provides for
                                            propeller could be misconstrued as an                   13590). This ISO standard excludes                    different treatment of engines used
                                            outboard engine. However, like                          open-bay vessels and specifies a                      solely for competition. In the initial
                                            traditional sterndrive and inboard                      maximum vessel length of 4 meters. The                rulemaking to set standards for OB/PWC
                                            engines, airboat engines are typically                  ISO standard for personal watercraft                  engines, we adopted the conventional
                                            derived from automotive-based engines                   therefore excludes personal watercraft-               definitions that excluded engines from
                                            without substantial modifications for                   like vessels 4 meters or greater and jet              the regulations if they had features that
                                            marine application. Airboat engines can                 boats. Thus, engines powering such                    were difficult to remove and that made
                                            use the same technologies that are                      vessels will be classified as sterndrive/             it unsafe, impractical, or unlikely to be
                                            available to sterndrive and inboard                     inboard engines. We believe this                      used for noncompetitive purposes. We
                                            engines, so we believe they should be                   definition effectively serves to                      have more recently taken the approach
                                            subject to the same standards. To                       differentiate vessels in a way that                   in other programs of more carefully
                                            address the concerns about classifying                  groups propulsion engines into                        differentiating competition and
                                            airboats, we are changing the outboard                  categories that are appropriate for                   noncompetition models, and are
                                            definition to specify that the engine and               meeting different emission standards.                 adopting these kinds of changes in this
                                            drive unit be a single, self-contained                  This approach is shown below with the                 rule. The changes to the provisions
                                            unit that is designed to be lifted out of               corresponding definition of personal                  relating to competition engines apply
                                            the water. This clarifies that air boats                watercraft engine. We are making one                  equally to all types of Marine SI
                                            are not outboard engines; air boats do                  change to the ISO definition for                      engines. See Section III.B and
                                            not have engines and drive units that                   domestic regulatory purposes; we are                  § 1045.620 of the regulations for a full
                                            are designed to be lifted out of the                    removing the word ‘‘inboard’’ to prevent              discussion of the new approach.
                                            water. We are adopting the following                    confusion between PWC and inboard                        We are incorporating a new
                                            definition:                                             engines and state specifically that a                 exemption to address individuals who
                                               • Outboard engine means an
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                                                                                                    vessel powered by an outboard marine                  manufacture recreational marine vessels
                                            assembly of a spark-ignition engine and                 engine is not a PWC. We are revising the              for personal use as described in Section
                                            drive unit used to propel a marine                      definitions as follows:                               III.B.2.
                                            vessel from a properly mounted position                    • Personal watercraft means a vessel                  In the rulemaking for recreational
                                            external to the hull of the marine vessel.              less than 4.0 meters (13 feet) in length              vehicles, we chose not to apply
                                            An outboard drive unit is partially                     that uses an installed spark-ignition                 standards to hobby products by

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                                            59064                 Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            exempting all reduced-scale models of                                        emissions. See Section VI for a                                       emission standards are largely based on
                                            vehicles that are not capable of                                             description of the final requirements                                 certification data from cleaner-burning
                                            transporting a person (67 FR 68242,                                          related to evaporative emissions.                                     four-stroke engines and two-stroke
                                            November 8, 2002). We are extending                                                                                                                direct-injection engines that are certified
                                                                                                                         (1) Standards and Dates
                                            that same provision to OB/PWC marine                                                                                                               under part 91. Section IV.H discusses
                                            engines (see § 1045.5).                                                        We are requiring new HC+NOX                                         the technological feasibility of these
                                                                                                                         standards for OB/PWC engines starting
                                            C. Final Exhaust Emission Standards                                                                                                                standards in more detail. Table IV–1
                                                                                                                         in model year 2010 that will achieve
                                                                                                                                                                                               presents the exhaust emission standards
                                              We are requiring more stringent                                            more than a 60 percent reduction from
                                            exhaust emission standards for new OB/                                       the 2006 standards (see § 1045.103). We                               for OB/PWC. The HC+NOX emission
                                            PWC marine engines. These standards                                          are also establishing new CO emission                                 standards are the same as those adopted
                                            can be met through expanded reliance                                         standards. These standards will result in                             by California ARB for 2008 and later
                                            on four-stroke engines and two-stroke                                        meaningful CO reductions from many                                    model years. We are also applying not-
                                            direct-injection engines. This section                                       engines and prevent CO from increasing                                to-exceed emission standards over a
                                            describes the new requirements for OB/                                       for engines that already use technologies                             range of engine operating conditions, as
                                            PWC engines for controlling exhaust                                          with lower CO emissions. The new                                      described in Section IV.C.2.

                                                                                               TABLE IV–1: OB/PWC EXHAUST EMISSION STANDARDS [G/KW-HR]
                                                                                                    Pollutant                                                                    Power                        Emission standard

                                            HC+NOX ..................................................................................................................           P ≤ 4.3   kW    30.0
                                                                                                                                                                                P > 4.3   kW    2.1 + 0.09 × (151 + 557/P0.9))
                                            CO ............................................................................................................................     P ≤ 40    kW    500—5.0 × P
                                                                                                                                                                                 P> 40    kW    300
                                               Note: P = maximum engine power in kilowatts (kW).

                                               Our implementation date allows two                                        controlling air-fuel ratio for reducing                               HC+NOX and for CO (see § 1045.105).
                                            additional years beyond the                                                  emissions. For operation at higher                                    Section IV.D.5 gives an overview of the
                                            implementation date of the same                                              altitudes, manufacturers may rely on an                               NTE standards and compliance
                                            standards in California. Manufacturers                                       altitude kit that allows their engines to                             provisions and describes the NTE test
                                            generally sell their lower-emission                                          meet emission standards at higher                                     procedures.
                                            engines, which are already meeting the                                       elevations. In this case, engine                                        Manufacturers commented that
                                            2008 California standards, nationwide.                                       manufacturers must describe the kit                                   certification to the NTE standards
                                            However, the additional time will give                                       specifications in their application for
                                                                                                                                                                                               requires additional testing even for
                                            manufacturers time to address any                                            certification and identify in the owner’s
                                                                                                                                                                                               engine models that are currently
                                            models that may not meet the upcoming                                        manual the altitude ranges for proper
                                                                                                                                                                                               certified to emission levels below the
                                            California standards or are not sold in                                      engine performance and emission
                                                                                                                                                                                               new duty-cycle based standards. In
                                            California. This also accommodates the                                       control that are expected with and
                                                                                                                                                                                               addition, they expressed concern that
                                            lead time concerns with the timing of                                        without the altitude kit. The owner’s
                                            this final rule as expressed by the                                          manual must also state that operating                                 they may need to recalibrate existing
                                            commenters.                                                                  the engine with the wrong engine                                      engine models to meet the NTE
                                                                                                                         configuration at a given altitude may                                 standards. Manufacturers commented
                                               The emission standards apply at the
                                                                                                                         increase its emissions and decrease fuel                              that this would not be possible by 2010
                                            range of atmospheric pressures
                                                                                                                         efficiency and performance. The                                       because of the large number of engine
                                            represented by the test conditions
                                            specified in part 1065. This includes                                        regulations specify that owners may                                   models. For most engines,
                                            operation at elevated altitudes. Since                                       follow the manufacturer’s instructions                                manufacturers carry over preexisting
                                            not all engines have electronic engines                                      to modify their engines with altitude                                 certification test data from year to year.
                                            with feedback controls to incorporate                                        kits without violating the tampering                                  Manufacturers commented that
                                            altitude compensation, we are taking the                                     prohibition. See Section IV.E.8 for                                   additional time would be necessary to
                                            same approach here as for Small SI                                           further discussion related to the                                     retest, and potentially recalibrate, all
                                            engines where a similar dynamic is in                                        deployment of altitude kits where the                                 these engines for certification to the
                                            place. Specifically, we are requiring that                                   manufacturers rely on them for                                        NTE standards. To address these issues
                                            all engines must comply with emission                                        operation at higher altitudes.                                        regarding lead time needed to retest
                                            standards in the standard configuration                                         The new standards include the same                                 these engines, we are not applying the
                                            (i.e., without an altitude kit) at                                           general provisions that apply today. For                              NTE standards for 2010–2012 model
                                            barometric pressures above 94.0 kPa,                                         example, engines must control                                         year engines that are certified using
                                            which corresponds to altitudes up to                                         crankcase emissions. The regulations                                  preexisting data (i.e., carryover engine
                                            about 2,000 feet above sea level (see                                        also require compliance over the full                                 families). For new engine models,
                                            § 1045.115). This will ensure that all                                       range of adjustable parameters and                                    manufacturers indicated that they will
                                            areas east of the Rocky Mountains and                                        prohibit the use of defeat devices. (See                              be able to perform the NTE testing and
                                            most of the populated areas in Pacific                                       § 1045.115.)                                                          duty-cycle testing as part of their efforts
                                                                                                                                                                                               to certify to the new standards.
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                                            Coast states will have compliant engines
                                                                                                                         (2) Not-to-Exceed Standards                                           Therefore the primary implementation
                                            without depending on engine
                                            adjustments. This becomes more                                                 We are adopting emission standards                                  date of 2010 applies to these engines.
                                            important as we anticipate                                                   that apply over an NTE zone. The NTE                                  Beginning in the 2013 model year, all
                                            manufacturers increasingly relying on                                        standards are in the form of a multiplier                             conventional OB/PWC engines must be
                                            technologies that are sensitive to                                           times the duty-cycle standard for                                     certified to meet the NTE standards.

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                                               This NTE approach complements the                    emission credit banks. Alternatively, we                 For OB/PWC engines subject to the
                                            weighted modal emission tests included                  may adopt future standards without                    new emission standards, we are
                                            in this rule. These steady-state duty                   allowing the use of existing emission                 adopting FEL caps to prevent the sale of
                                            cycles and standards are intended to                    credits.                                              very high-emitting engines. For
                                            establish average emission levels over                     We are adopting the equation for                   HC+NOX, the FEL cap will be the
                                            several discrete modes of engine                        calculating emission credits for OB/                  applicable 2006 and later model year
                                            operation. Because it is an average,                    PWC engines as proposed. This                         HC+NOX standard, which is dependent
                                            manufacturers design their engines with                 equation represents a simpler                         on the average power of an engine
                                            emission levels at individual points                    calculation than is currently used for                family. For CO, the FEL cap will be 150
                                            varying as needed to maintain                           OB/PWC engines and is based on the                    g/kW-hr above the newly adopted CO
                                            maximum engine performance and still                    equation that is common in many of our                standard, which is also dependent on
                                            meet the engine standard. The NTE                       other ABT programs. The primary                       the average power of an engine family.
                                            limit will be an additional requirement.                difference is that the regulatory useful              We believe these FEL caps will allow a
                                            It is intended to ensure that emission                  life will be used in the credit calculation           great deal of flexibility for
                                            controls function with relative                         rather than a discounted useful life                  manufacturers using credits, but will
                                            consistency across the full range of                    function based on engine type and                     require manufacturers to stop producing
                                            expected operating conditions.                          power rating. In addition, the emission               engines that emit pollutants at
                                                                                                    credits will be reported in units of                  essentially uncontrolled levels.
                                            (3) Emission Credit Programs                                                                                     We are specifying that OB/PWC
                                                                                                    kilograms rather than grams.
                                               Engine manufacturers may use                                                                               engines are in a separate averaging set
                                                                                                       We are also adopting an averaging
                                            emission credits to meet OB/PWC                                                                               from SD/I engines, with an exception for
                                                                                                    program for CO emissions. Under this
                                            standards under part 91. We are                                                                               certain jet boat engines. This means that
                                                                                                    program, manufacturers can generate
                                            adopting an ABT program for the new                                                                           credits earned by OB/PWC engines may
                                                                                                    credits with engine families that have
                                            HC+NOX emission standards that is                                                                             be used only to offset higher emissions
                                                                                                    FELs below the CO emission standard to
                                            similar to the previous program (see part                                                                     from other OB/PWC engines. Likewise,
                                            1045, subpart H). A description of the                  be used for engine families in their
                                                                                                                                                          credits earned by SD/I engines may be
                                            ABT provisions for the new OB/PWC                       product line in the same model year that
                                                                                                                                                          used only to offset higher emissions
                                            standards is described below.                           are above the CO standard. However, we
                                                                                                                                                          from other SD/I engines. As described in
                                               OB/PWC engine manufacturers that                     are not establishing a banking program
                                                                                                                                                          Section III.C.2, manufacturers will be
                                            have generated HC+NOX credits under                     for CO emissions. As noted in the
                                                                                                                                                          able to use credits generated from OB/
                                            the 2006 standards will be able to use                  proposal, we are concerned that a
                                                                                                                                                          PWC engines to demonstrate that their
                                            those credits to demonstrate compliance                 banking program could result in a large
                                                                                                                                                          jet boat engines meet the HC+NOX and
                                            with the new HC+NOX standards being                     accumulation of credits based on a
                                                                                                                                                          CO standards for SD/I engines if the
                                            adopted in this final rule. The credits                 given company’s mix of engine
                                                                                                                                                          majority of units sold in the United
                                            generated under the 2006 standards are                  technologies. Furthermore, because we
                                                                                                                                                          States from those related OB/PWC
                                            subject to a three-year credit life.                    generally allow trading only with                     engine families are sold for use as OB/
                                            Therefore, a manufacturer will be able                  banked credits, we are not allowing                   PWC engines.
                                            to use those credits for demonstrating                  trading of CO emission credits.                          Finally, manufacturers may include as
                                            compliance with the new standards as                       EPA proposed that manufacturers                    part of their federal credit calculation
                                            long as the credits have not expired.                   would not be able to earn credits for one             the sales of engines in California as long
                                               We are allowing an indefinite life for               pollutant while using credits to comply               as they don’t separately account for
                                            emission credits earned under the new                   with the emissions standard for another               those emission credits under the
                                            standards for OB/PWC engines. We                        pollutant. We are dropping that                       California regulations. We originally
                                            consider these emission credits to be                   provision for the final rule. The                     proposed to exclude engines sold in
                                            part of the overall program for                         proposed restriction was modeled on                   California that are subject to the
                                            complying with standards. Given that                    similar requirements in other ABT                     California ARB standards. However, we
                                            we may consider further reductions                      programs where there was concern that                 consider California’s current HC+NOX
                                            beyond these standards in the future, we                a manufacturer could use technologies                 standards to be equivalent to those we
                                            believe it will be important to assess the              to reduce one pollutant while increasing              are adopting in this rulemaking, so we
                                            ABT credit situation that exists at the                 another pollutant. The types of                       would expect a widespread practice of
                                            time any further standards are                          technologies manufacturers are                        producing and marketing 50-state
                                            considered. Emission credit balances                    expected to use to comply with the new                products. Therefore, as long as a
                                            will be part of the analysis for                        standards include direct-injection two-               manufacturer is not generating credits
                                            determining the appropriate level and                   stroke engines or four-stroke engines.                under California’s averaging program for
                                            timing of new standards, consistent                     Both of these technologies should result              OB/PWC engines, we would allow
                                            with the statutory requirement to                       in reductions in both HC+NOX                          manufacturers to count those engines
                                            establish standards that represent the                  emissions and CO emissions compared                   when calculating credits under EPA’s
                                            greatest degree of emission reduction                   to current designs. While the                         program. This is consistent with how
                                            achievable, considering cost, safety, lead              technologies are expected to reduce                   EPA allows credits to be calculated in
                                            time, and other factors. If we were to                  both HC+NOX emissions and CO                          other nonroad sectors, such as
                                            allow the use of credits generated under                emissions, there could be situations                  recreational vehicles.
                                            the standards adopted in this rule to                   where these technologies are capable of
                                            meet more stringent standards adopt in                  meeting one of the emission standards                 (4) Durability Provisions
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                                            a future rulemaking, we may need to                     but not the other. EPA does not want to                  We are keeping the useful life periods
                                            adopt emission standards at more                        preclude such engines from being able                 from 40 CFR part 91. The specified
                                            stringent levels or with an earlier start               to certify using the provisions of the                useful life for outboard engines is 10
                                            date than we would absent the                           ABT program and is therefore dropping                 years or 350 hours of operation,
                                            continued use of existing emission                      the proposed restriction from the final               whichever comes first. The useful life
                                            credits, depending on the level of                      rule.                                                 for personal watercraft engines is 5

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                                            59066            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            years or 350 hours of operation,                        full useful life, we believe it is not                in-use operation. This also helps ensure
                                            whichever comes first. (See § 1045.103.)                appropriate to extrapolate measured                   that the NTE zone is appropriately
                                              We are updating the specified                         values indicating that emission levels                matched to in-use operating conditions.
                                            emissions warranty periods for outboard                 for a particular pollutant will decrease.                We are defining the maximum test
                                            and personal watercraft engines to align                   Under the current regulations,                     speed for any engine to be the single
                                            with our other emission control                         emission-related maintenance is not                   point on an engine’s maximum-power
                                            programs (see § 1045.120). Most                         allowed during service accumulation to                versus speed curve that lies farthest
                                            nonroad engines have emissions                          establish deterioration factors. The only             away from the zero-power, zero-speed
                                            warranty periods that are half of the                   maintenance that may be done must be                  point on a normalized maximum-power
                                            total useful life period. Accordingly, the              (1) regularly scheduled, (2) unrelated to             versus speed plot. In other words,
                                            new warranty period for outboard                        emissions, and (3) technologically                    consider straight lines drawn between
                                            engines is five years or 175 hours of                   necessary. This typically includes                    the origin (speed = 0, load = 0) and each
                                            operation, whichever comes first. The                   changing engine oil, oil filter, fuel filter,         point on an engine’s normalized
                                            new warranty period for personal                        and air filter. In addition, we are                   maximum-power versus speed curve.
                                            watercraft engines is 30 months or 175                  specifying that manufacturers may not                 The nominal value of maximum test
                                            hours, whichever comes first. This                      schedule critical emission-related                    speed is defined at that point where the
                                            contrasts somewhat with the currently                   maintenance during the useful life                    length of this line reaches its maximum
                                            specified warranty period of 200 hours                  period (see § 1045.125). This will                    value.
                                            or two years (or three years for specified              prevent manufacturers from designing                     The engine mapping procedures in
                                            major emission control components).                     engines with emission controls that                   part 1065 that we referenced in the
                                            The new approach will slightly decrease                 depend on scheduled maintenance that                  proposal allow manufacturers to declare
                                            the warranty period in terms of hours,                  is not likely to occur with in-use                    a value for maximum test speed that is
                                            but will somewhat increase the period                   engines.                                              within 2.5 percent of the calculated (or
                                            in terms of calendar years (or months).                                                                       measured) nominal value. Based on the
                                              If the manufacturer offers a longer                   D. Changes to OB/PWC Test Procedures
                                                                                                                                                          manufacturers’ descriptions of the way
                                            mechanical warranty for the engine or                     We are making a number of minor                     they instruct boat builders to match
                                            any of its components at no additional                  changes to the test procedures for OB/                propellers to their engines, we have
                                            charge, we are requiring that the                       PWC to make them more consistent                      included in the final rule a special
                                            emission-related warranty for the                       with the test procedures for other                    allowance for manufacturers to declare
                                            respective engine or component must be                  nonroad spark-ignition engines. These                 a value for maximum test speed that is
                                            extended by the same amount. The                        test provisions will apply to SD/I                    up to 500 rpm below the calculated
                                            emission-related warranty includes                      marine engines as well.                               value. This equates to about 8 percent
                                            components related to controlling
                                                                                                    (1) Duty Cycle                                        of the calculated value for most engines;
                                            exhaust, evaporative, and crankcase
                                                                                                       A duty cycle is the set of modes                   however, we would never expect
                                            emissions from the engine. This
                                                                                                    (engine speed and load) over which an                 manufacturers to select a value for
                                            approach to setting warranty
                                                                                                    engine is operated during a test. For                 maximum test speed that is above the
                                            requirements is consistent with
                                                                                                    purposes of exhaust emission testing,                 nominal value, so the total allowable
                                            provisions that apply in most other
                                                                                                    we are keeping the duty cycle specified               range is not much greater than for other
                                            programs for nonroad engines.
                                              We are keeping the requirements                       for OB/PWC engines, with two                          engines. We also note that the maximum
                                            related to demonstrating the durability                 adjustments (see § 1045.505). First, we               test speed for a four-stroke engine that
                                            of emission controls for purposes of                    are requiring that manufacturers may                  remains installed in a vessel is the
                                            certification (see § 1045.235, § 1045.240,              choose to run the specified duty cycle                highest engine speed that can occur. As
                                            and § 1045.245). Manufacturers must                     as a ramped-modal cycle. Second, we                   long as the propeller matching and other
                                            run engines long enough to develop and                  are changing the low-power test mode                  vessel characteristics do not take the
                                            justify full-life deterioration factors.                from a specified 25 percent load                      engine outside of the manufacturer’s
                                            This allows manufacturers to generate a                 condition to 25.3 percent load, which                 specified range, the engine would need
                                            deterioration factor that helps ensure                  will complete the intended alignment                  to meet the Not-to-Exceed standards
                                            that the engines will continue to control               with the E4 duty cycle adopted by the                 based on the in-use value for maximum
                                            emissions over a lifetime of operation.                 International Organization for                        test speed. These provisions related to
                                            The new requirement to generate                         Standardization.                                      maximum test speed apply equally to
                                            deterioration factors for CO emissions is                                                                     OB/PWC engines and SD/I engines.
                                            the same as that for HC+NOX emissions.                  (2) Maximum Test Speed
                                                                                                                                                          (3) 40 CFR Part 1065
                                            For the HC+NOX standard, we are                           The definition of maximum test
                                            requiring that manufacturers use a                      speed, where speed is the angular                       We are requiring that OB/PWC
                                            single deterioration factor for the sum of              velocity of an engine’s crankshaft                    engines certified to the new exhaust
                                            HC and NOX emissions. However, if                       (usually expressed in revolutions per                 emission standards use the test
                                            manufacturers get our approval to                       minute, or rpm), is an important aspect               procedures in 40 CFR part 1065 instead
                                            establish a deterioration factor on an                  of the duty cycles for testing. Engine                of those in 40 CFR part 91.95 Part 1065
                                            engine that is tested with service                      manufacturers currently declare the                   includes detailed laboratory and
                                            accumulation representing less than the                 rated speeds for their engines and then               equipment specifications and
                                            full useful life for any reason, we will                used the rated speed as the maximum                   procedures for equipment calibration
                                            require separate deterioration factors for              speed for testing. However, we have                   and emission measurements. These new
                                                                                                                                                          procedures will apply starting with the
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                                            HC and NOX emissions. The advantage                     established an objective procedure for
                                            of a combined deterioration factor is                   measuring this engine parameter to have               introduction of new exhaust standards,
                                            that it can account for an improvement                  a clearer reference point for an engine’s               95 See our previous rulemakings related to 40 CFR
                                            in emission levels with aging. However,                 maximum test speed. This is important                 part 1065 for more information about the changes
                                            for engines that have service                           to ensure that engines are tested at                  in test provisions (70 FR 40420, July 13, 2005 and
                                            accumulation representing less than the                 operating points that correspond with                 67 FR 68242, November 8, 2002).

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                     59067

                                            though we will allow manufacturers to                   up to 30 hours of engine operation is                 engines as described in Section III. We
                                            start using these new procedures earlier                consistent with what we have done for                 are applying the same NTE zone;
                                            as an alternative procedure. The                        recreational vehicles and will give                   however, we are establishing different
                                            procedures in part 1065 include                         manufacturers more time to complete a                 subzones and emission limits based on
                                            updated provisions to account for newer                 valid low-hour test.                                  data presented in the Final RIA.
                                            measurement technologies and                              For production-line testing there is                Emission data for four-stroke marine
                                            improved calculation and corrections                    also a concern about how long an engine               engines suggest that brake-specific
                                            procedures. Part 1065 also specifies                    should operate to reach a stabilized                  emission rates are relatively constant
                                            more detailed provisions related to                     emission level. We are keeping the                    throughout the NTE zone. One
                                            alternate procedures, including a                       provision in part 91 that allows for a                exception is slightly higher HC+NOX
                                            requirement to conduct testing                          presumed stabilization period of 12                   emissions at low power. To account for
                                            representative of in-use operation. In                  hours (see § 90.117(a)). We believe 12                this, we are subdividing the NTE zone
                                            many cases, we allow carryover of                       hours is sufficient to stabilize the                  to have a low-power subzone below 50
                                            emission test data from one year to                     emissions from the engine.                            percent of maximum test speed. In this
                                            another. After the implementation of the                                                                      low-power subzone, the HC+NOX NTE
                                                                                                    (5) Not-to-Exceed Test Procedures and
                                            new standards, we will allow the                                                                              limit is 1.6, while it is 1.4 for the
                                            carryover of any test data generated                                                                          remainder of the NTE zone. The CO
                                            prior to 2009 under the test procedures                   Section III.D.2 discusses the general               NTE limit is 1.5 throughout the NTE
                                            in 40 CFR part 91.                                      concept and approach behind NTE                       zone. Figure IV–1 presents the NTE
                                                                                                    standards for Marine SI engines. In                   zone and subzones. These limits would
                                            (4) Engine Break-in                                     addition, Section III.D.2 presents                    apply to all non-catalyzed four-stroke
                                               Testing new engines requires a period                specific zones and limits for catalyst-               engines. See Section III.D.2 for a
                                            of engine operation to stabilize emission               equipped marine engines. We are                       detailed discussion of NTE
                                            levels. The regulations specify two                     applying the same general NTE testing                 requirements that apply for catalyst-
                                            separate figures for break-in periods.                  provisions to OB/PWC engines,                         equipped engines (including OB/PWC
                                            First, for certification, we establish a                including the same broad NTE zone and                 engines).
                                            limit on how much an engine may                         ambient conditions (see § 1045.515).
                                            operate and still be considered a ‘‘low-                  We anticipate that most OB/PWC                         As discussed above in Section IV.C.2,
                                            hour’’ engine. The results of testing with              engines subject to the NTE standards                  we are providing extra lead time for
                                            the low-hour engine are compared with                   will use engine-based controls to meet                2010–2012 model year engines certified
                                            a deteriorated value after some degree of               the exhaust emission standards. For that              using preexisting data. The purpose of
                                            service accumulation to establish a                     reason, this discussion focuses on the                this provision is to allow testing and
                                            deterioration factor. For Large SI                      NTE zone and subzones for engines not                 calibration work to better fit into
                                            engines, we require that low-hour test                  equipped with catalysts. Data presented               product development cycles. We have
                                            engines have no more than 300 hours of                  in Chapter 4 of the RIA suggests that the             received an indication that a small
                                            engine operation. However, given the                    emissions characteristics of marine                   subset of existing outboard engines may
                                            shorter useful life for marine engines,                 engines are largely dependent on                      need additional time to meet the 1.4
                                            this will not make for a meaningful                     technology type. Four-stroke engines                  NTE limit at mid-range speeds due to
                                            process for establishing deterioration                  tend to have relatively constant                      technological challenges associated with
                                            factors, even if there is a degree of                   emission levels throughout the NTE                    high-power supercharging.
                                            commonality between the two types of                    zone. In contrast, two-stroke engines                 Manufacturers have indicated that a
                                            engines. We are requiring that low-hour                 tend to have high variability in                      slightly higher limit of 1.6 would be
                                            marine spark-ignition engines generally                 emissions, not only within the NTE                    feasible in the 2013 time frame, but
                                            have no more than 30 hours of engine                    zone but between different engine                     additional time would be needed for
                                            operation (see § 1045.801). This allows                 designs as well. Therefore, we                        hardware changes to meet the 1.4 limit.
                                            some substantial time for break-in,                     developed separate NTE approaches and                 To address this issue, we are
                                            stabilization, and running multiple                     standards for four-stroke and two-stroke              temporarily expanding Subzone 2 to
                                            tests, without approaching a significant                engines. These approaches and                         include mid-range speeds up to 70
                                            fraction of the useful life. The current                standards are discussed below.                        percent of maximum test speed for
                                            regulation in part 91 specifies that                                                                          supercharged outboard engines greater
                                            manufacturers perform the low-hour                      (a) Four-Stroke Marine Engines                        than 150 kW. Beginning with the 2015
                                            measurement after no more than 12                          The NTE approach for four-stroke                   model year, these engines would be
                                            hours of engine operation (see                          marine engines without catalysts is                   subject to the same NTE zone and
                                            § 91.408(a)(1)). The new allowance for                  similar to that for catalyst-equipped                 standards as other four-stroke engines.
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                                            59068            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            (b) Two-Stroke Marine Engines                           NTE approach in the context of those                  installed in boats do not generally
                                                                                                    standards.                                            operate on the theoretical propeller
                                               The emission data presented in                         Under the weighted NTE approach,                    curve used to define the 5-mode duty
                                            Chapter 4 of the Final RIA for two-                     emission data is collected at five test               cycle, this approach helps facilitate NTE
                                            stroke direct-injection marine engines                  points. These test points are idle, full              testing.
                                            suggest that these engines have high                    power, and the speeds specified in                       At each test mode, limits are placed
                                            variability in emissions, not only within               Modes 2 through 4 of the 5-mode duty                  on allowable engine operation. These
                                            the NTE zone but between different                      cycle. Similar to the 5-mode duty cycle,              limits are generally based on the NTE
                                            engine designs as well. Due to this                     the five test points are weighted to                  zone presented above for four-stroke
                                            variability, we do not believe that a flat              achieve a composite value. This                       engines, but there are two exceptions.
                                            (or stepped) limit in the NTE zone could                composite value must be no higher than                First, the lower torque limit at 40
                                            be effectively used to establish                        1.2 times the FEL for that engine family.             percent speed is lowered slightly to
                                            meaningful standards for these engines.                   The difference in this approach from                better ensure that an engine on an in-use
                                            At the same time, we continue to                        the 5-mode duty cycle is that the test                boat is capable of operating within the
                                            believe that NTE standards are valuable                 torque is not specified. During an in-use             NTE zone. Second, the speed range is
                                            for facilitating in-use testing. We                     test, the engine would be set to the                  extended at wide-open throttle for the
                                            therefore developed a weighted NTE                      target speed and the torque value would               same reason. Figure IV–3 presents the
                                            approach specifically for these engines.                be allowed to float. The actual torque                NTE zone and subzones. These limits
                                            In the long term, we may consider                       would depend on the propeller design,                 would apply to all non-catalyzed two-
                                            further emission reductions based on                    the weight and condition of the boat,                 stroke engines. See Section III.D.2 for a
                                            catalytic control applied to OB/PWC                     and other factors. In addition, the                   detailed discussion of NTE
                                            engines. In this case, we would revisit                 engine speed at wide open throttle                    requirements that apply to catalyst-
                                            the appropriateness of the weighted                     would be based on actual performance                  equipped engines (including OB/PWC
                                                                                                    on the boat. Because in-use engines                   engines).
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                                              During laboratory testing, any point                  expect to use our test fuel without                   increase or stay the same, these effects
                                            within each of the four non-idle                        oxygenates for all confirmatory testing               result in small decreases in total
                                            subzones may be chosen as test points.                  for exhaust emissions. Therefore, an                  HC+NOX emission levels, with the
                                            These test points do not necessarily                    engine manufacturer will want to                      difference generally being around 10
                                            need to lie on a propeller curve. Note                  consider the impacts of ethanol on                    percent. CARB is currently running a
                                            that measured power should be used in                   emissions in evaluating the compliance                test program to look at the emission
                                            the calculation of the weighted brake-                  margin for the standard, or in setting the            impacts of ethanol blends on a range of
                                            specific emissions.                                     FEL for the engine family if it is                    Marine SI engines. Based on the results
                                                                                                    participating in the ABT program. We                  of that test program, we may consider
                                            (6) Test Fuel                                                                                                 changes to the provisions allowing the
                                                                                                    could decide at our own discretion to do
                                               As described below in Section V.D.3,                 exhaust emissions testing using a 10                  use of a 10 percent ethanol blend for
                                            we are adopting provisions that will                    percent ethanol blend if the                          certification and production-line testing.
                                            allow manufacturers to use a 10 percent                 manufacturer certified on that fuel.                  E. Additional Certification and
                                            ethanol blend for certification testing of                Ethanol has been blended into in-use                Compliance Provisions
                                            exhaust emissions from Small SI                         gasoline for many years and its use has
                                            engines as an alternative to the standard               been increasing in recent years. Under                (1) Production-Line Testing
                                            gasoline test fuel. We are adopting                     provisions of the Energy Independence                    We are continuing to require that
                                            similar provisions for Marine SI engines                and Security Act of 2007, ethanol is                  manufacturers routinely test engines at
                                            in this rule. This option to use a 10                   required to be used in significantly                  the point of production to ensure that
                                            percent ethanol blend will begin with                   greater quantities. We project that                   production variability does not affect
                                            the implementation date of the new                      potentially 80 percent of the national                the engine family’s compliance with
                                            exhaust standards for both OB/PWC                       gasoline pool will contain ethanol by                 emission standards. The final rule
                                            engines and SD/I engines. The option to                 2010, making ethanol blends (up to 10                 includes a variety of amendments and
                                            use a 10 percent ethanol blend would                    percent) the de facto in-use fuel. As                 adjustments as described in the
                                            apply to PLT testing as well if the                     ethanol blends become the main in-use                 proposal. We may also require
                                            manufacturer based their certification                  fuel, we believe it makes sense for                   manufacturers to perform production
                                            on the 10 percent ethanol blend. The                    manufacturers to optimize their engine                line testing under the selective
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                                            test fuel specifications are based on                   designs with regard to emissions,                     enforcement auditing provisions of 40
                                            using the current gasoline test fuel and                performance, and durability on such a                 CFR part 1068, subpart E.
                                            adding ethanol until the blended fuel                   fuel. While limited data on Marine SI
                                            has 10 percent ethanol by volume.                       engines operated on a 10 percent                      (2) In-Use Testing
                                            While we will allow use of a 10 percent                 ethanol blend suggests the HC emissions                 We are also continuing the
                                            ethanol blend for certification, we                     will decrease and NOX emission will                   requirements related to the

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                                            59070            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            manufacturer-run in-use testing                         the clear majority of applications for                but allows us to consider a wider range
                                            program. Under this program,                            certification are completed before the                of information in evaluating the degree
                                            manufacturers test field-aged engines to                end of the calendar year for the                      to which manufacturers are complying
                                            determine whether they continue to                      following model year. This provision                  with emission standards across their
                                            meet emission standards (see part 1045,                 will eliminate the manufacturers’ ability             product line. Second, this approach
                                            subpart E). We are, however, making a                   to game the testing system by delaying                makes clearer the role of the emission
                                            variety of changes and clarifications to                a family of potential concern until the               credits in our consideration to recall
                                            the current requirements, as described                  next calendar year. We expect to receive              failing engines. We plan to consider,
                                            in the following sections.                              few new applications after the end of                 among other information, average
                                                                                                    the calendar year. This will be                       emission levels from multiple engine
                                            (a) Adjustments Related to Engine
                                                                                                    consistent with the manufacturers’                    families in deciding whether to recall
                                                                                                    interest in early family selections,                  engines from a failing engine family. We
                                               Both EPA and manufacturers have                      without jeopardizing EPA’s interest in                therefore believe it is not appropriate to
                                            gained insights from implementing the                   being able to select from a                           have a detailed emission credit program
                                            current program. Manufacturers have                     manufacturer’s full product lineup.                   defining precisely how and when to
                                            expressed a concern that engine families                                                                      calculate, generate, and use credits that
                                            are selected rather late in the model                   (b) Crankcase Emissions
                                                                                                                                                          do not necessarily have value
                                            year, which makes it harder to prepare                    Because the crankcase requirements                  elsewhere.
                                            a test fleet for fulfilling testing                     are based on a design specification                      Not specifying how manufacturers
                                            obligations. On the other hand, we have                 rather than emission measurements, the
                                                                                                                                                          generate emission credits under the in-
                                            seen that manufacturers certify some of                 anticipated crankcase technologies are
                                                                                                                                                          use testing program gives us the ability
                                            their engine families well into the                     best evaluated simply by checking
                                                                                                                                                          to consider any appropriate test data in
                                            model year. By making selections early                  whether or not they continue to
                                                                                                                                                          deciding what action to take. In
                                            in the model year, we will generally be                 function as designed. As a result, we
                                                                                                                                                          generating this kind of information,
                                            foregoing the opportunity to select                     intend for an inspection of in-use
                                                                                                                                                          some general guidelines will apply. For
                                            engine families for which manufacturers                 engines to show whether these systems
                                                                                                                                                          example, we expect manufacturers to
                                            don’t apply for certification until after               continue to function properly
                                                                                                                                                          share test data from all engines and all
                                            the selections occur.                                   throughout the useful life, but we are
                                               To address these competing interests,                                                                      engine families tested under the in-use
                                                                                                    not requiring manufacturers to include
                                            we are adopting an approach that allows                 crankcase emission measurements as                    testing program, including nonstandard
                                            for early selection of engine families,                 part of the in-use testing program                    tests that might be used to screen
                                            while preserving the potential to require               described in this section. This is                    engines for later measurement. This
                                            testing for engines that are certified later            consistent with the approach we have                  allows us to understand the
                                            in the model year. For complete                         taken in other programs.                              manufacturers’ overall level of
                                            applications we receive by December 31                                                                        performance in controlling emissions to
                                            of a given calendar year for the                        (c) In-Use Emission Credits                           meet emission standards. Average
                                            following model year, we expect to                         Clean Air Act section 213 requires                 emission levels should be calculated
                                            select engine families for testing by the               engines to comply with emission                       over a running three-year period to
                                            end of February of the following year. If               standards throughout the regulatory                   include a broad range of testing without
                                            we have not made a complete selection                   useful life, and section 207 requires a               skewing the results based on old
                                            of engine families by the end of                        manufacturer to remedy in-use                         designs. Emission values from engines
                                            February, manufacturers have the                        nonconformity when we determine that                  certified to different tiers of emission
                                            option of making their own selections                   a substantial number of properly                      standards or tested using different
                                            for in-use testing. The regulations                     maintained and used engines fail to                   measurement procedures should not be
                                            include criteria to serve as guidance for               conform with the applicable emission                  combined to calculate a single average
                                            manufacturers to make appropriate                       standards (42 U.S.C. 7541). As described              emission level. Average emission levels
                                            selections. For example, we expect                      in the original rulemaking, a potential               should be calculated according to the
                                            manufacturers to most strongly consider                 option to address a nonconformity is                  following equation, rounding the results
                                            those engine families with the highest                  that manufacturers could use a                        to 0.1 g/kW-hr:
                                            projected sales volume and the smallest                 calculation of emission credits                       Average EL = Si[(STD–CL)i × (UL)i ×
                                            compliance margins. Manufacturers                       generated under the in-use testing                    (Sales)i × Poweri × LFi] ÷ Si [(UL)i ×
                                            may also take into account past                         program to avoid a recall determination               (Sales)i × Poweri × LFi]
                                            experience with engine families if they                 if an engine family’s in-use testing                  Where: 

                                            have already passed an in-use testing                   results exceeded emission standards (61
                                                                                                                                                          Average EL = Average emission level in 

                                            regimen and have not undergone                          FR 52095, October 4, 1996).                               g/kW-hr.
                                            significant design changes since that                      We are adopting a more general                     Salesi = The number of eligible sales, tracked
                                            time.                                                   approach to addressing potential                          to the point of first retail sale in the U.S.,
                                               We will treat engine families                        noncompliance under the in-use testing                    for the given engine family during the
                                            differently for in-use testing if we                    program than is specified in 40 CFR part                  model year.
                                            receive the application after December                  91. The final regulations do not specify              (STD–CL)i = The difference between the
                                            31. This applies, for example, if we                    how manufacturers could generate                          emission standard (or Family Emission
                                            receive a complete application for a                    emission credits to offset a                              Limit) and the average emission level for
                                            2010 engine family in February 2010. In                 nonconforming engine family. This new                     an in-use testing family in g/kW-hr.
                                                                                                                                                          ULi = Useful life in hours.
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                                            these cases, the engine family will                     approach is preferred for two primary
                                                                                                                                                          Poweri = The sales-weighted average
                                            automatically be subject to in-use                      reasons. First, manufacturers will be                     maximum engine power for an engine
                                            testing, without regard to the 25 percent               able to use emission data generated from                  family in kW.
                                            limitation that will otherwise dictate                  field testing to characterize an engine               LFi = Load factor or fraction of maximum
                                            our selections. This may appear to                      family’s average emission level. This                     engine power utilized in use; use 0.50 for
                                            increase the potential test burden, but                 becomes necessarily more subjective,                      engine families used only in constant-

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                       59071

                                                 speed applications and 0.32 for all other          calculation; this may be measured either              rare occurrence, but this provision will
                                                 engine families.                                   in the intake or exhaust manifold.                    allow us to accommodate manufacturers
                                              We have adopted this same approach                       Calculating brake-specific emissions               if extreme unforeseen circumstances
                                            for the in-use testing program that                     depends on determining instantaneous                  prevent a manufacturer from completing
                                            applies for Large SI engines in 40 CFR                  engine speed and torque levels. We are                a test program.
                                            part 1048.                                              therefore requiring manufacturers to                     There are a variety of smaller changes
                                                                                                    design their engine control systems to                to the in-use testing provisions as a
                                            (3) Optional Procedures for Field                       be able to continuously monitor engine
                                            Testing                                                                                                       result of updating the regulatory
                                                                                                    speed and torque. We have already                     language to reflect the language changes
                                               Outboard engines are inherently                      adopted this requirement for other                    that we adopted for similar testing with
                                            portable, so it may be easier to test them              mobile source programs where                          Large SI engines. First, we are removing
                                            in the laboratory than in the field.                    electronic engine control is used.                    the requirement to select engines that
                                            However, there is a strong advantage to                 Monitoring speed values is                            have had service accumulation
                                            using portable measurement equipment                    straightforward. For torque, the onboard              representing less than 75 percent of the
                                            to test personal watercraft and SD/I                    computer needs to convert measured                    useful life. This gives manufacturers the
                                            engines while the engine remains                        engine parameters into useful units.                  flexibility to test somewhat older
                                            installed to avoid the effort of taking the             Manufacturers generally will need to                  engines if they want to. Second, we are
                                            engine out and setting it up in a                       monitor a surrogate value such as intake              slightly adjusting the description of the
                                            laboratory. Field testing will also                     manifold pressure or throttle position                timing of the test program, specifying
                                            provide a much better means of                          (or both), then rely on a look-up table               that the manufacturer must submit a test
                                            measuring emissions to establish                        programmed into the onboard computer                  plan within 12 months of EPA selecting
                                            compliance with the NTE standards,                      to convert these torque indicators into               the family for testing, with a
                                            because it is intended to ensure control                Newton-meters. Manufacturers may also                 requirement to complete all testing
                                            of emissions during normal in-use                       want to program look-up tables for                    within 24 months. This contrasts with
                                            operation that may not occur during                     torque conversion into a remote scan
                                                                                                                                                          the current requirement to complete
                                            laboratory testing over the specified                   tool. Part 1065 specifies the
                                                                                                                                                          testing within 12 months after the start
                                            duty cycle. We are adopting the field                   performance requirements for accuracy,
                                                                                                                                                          of testing, which in turn must occur
                                            testing provisions described below as an                repeatability, and noise related to speed
                                                                                                                                                          within 12 months of family selection.
                                            option for all OB/PWC and SD/I                          and torque measurements. These
                                                                                                                                                          We believe the modified approach
                                            engines.                                                tolerances are taken into account in the
                                               The regulations at 40 CFR part 1065,                                                                       allows additional flexibility without
                                                                                                    selection of the new NTE standards. We
                                            subpart J, specify how to measure                                                                             delaying the conclusion of testing.
                                                                                                    are adopting the requirement to meet
                                            emissions using portable measurement                                                                          Third, we are requiring that
                                                                                                    the torque-broadcasting requirements in
                                            equipment. To test engines while they                                                                         manufacturers explain why they
                                                                                                    the 2013 model year, which aligns with
                                            remain installed, analyzers are                         the final implementation of the NTE                   excluded any particular engines from
                                            connected to the engine’s exhaust to                    standards.                                            testing. Finally, we are requiring
                                            detect emission concentrations during                                                                         manufacturers to report any
                                                                                                    (4) Other Changes for In-Use Testing                  noncompliance within 15 days after
                                            normal operation. Exhaust volumetric
                                            flow rate and continuous power output                      A question has been raised regarding               completion of testing for a family, rather
                                            are also needed to convert the analyzer                 the extent of liability if an engine family           than 15 days after an individual engine
                                            responses to units of g/kW-hr for                       is found to be noncompliant during in-                fails. This has the advantage for
                                            comparing to emission standards. These                  use testing. Because it can take up to                manufacturers and the Agency of a more
                                            values can be calculated from                           two years to complete the in-use testing              unified reporting after testing is
                                            measurements of the engine intake flow                  regimen for an engine family, we want                 complete, rather than piecemeal
                                            rate, the exhaust air-fuel ratio and the                to clarify the status of engines produced             reporting before conclusions can be
                                            engine speed, and from torque                           under that engine family’s certificate,               drawn.
                                            information.                                            and under the certificates of earlier and             (5) Use of Engines Already Certified to
                                               Available small analyzers and other                  later engine families that were                       Other Programs
                                            equipment may be adapted for                            effectively of the same design. For
                                            measuring emissions in the field. A                     example, manufacturers in many cases                     In some cases, manufacturers may
                                            portable flame ionization detector can                  use carryover data to continue certifying             want to use engines already certified
                                            measure total hydrocarbon                               new engine families for a subsequent                  under our other programs. Engines
                                            concentrations. A portable analyzer                     model year; this avoids the need to                   certified to the emission standards for
                                            based on zirconia technology can                        produce new test data for engines whose               highway applications in part 86 or Large
                                            measure NOX emissions. A                                design does not change from year to                   SI applications in part 1048 are meeting
                                            nondispersive infrared (NDIR) unit can                  year. For these cases, absent any                     more stringent standards. We are
                                            measure CO. We are requiring                            contrary information from the                         therefore accepting the pre-existing
                                            manufacturers to specify how they will                  manufacturer, we will maintain the                    certification for these engines used in
                                            intend to draw emission samples from                    discretion to include other applicable                marine applications, on the condition
                                            in-use engines for testing installed                    engine families in the scope of any                   that the engine is not changed from its
                                            engines. For example, emission samples                  eventual recall, as allowed by the Act.               certified configuration in any way (see
                                            can be drawn from the exhaust flow                         In response to comments received                   § 1045.605). We allow this in a similar
                                            directly upstream of the point at which                 from manufacturers, we have agreed to                 way for a limited number of engines
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                                            water is mixed into the exhaust flow.                   adopt a provision allowing                            certified to the Small SI emission
                                            This should minimize collection of                      manufacturers to request hardship relief              standards (see § 1045.610). The number
                                            water in the extracted sample, though a                 under the in-use testing program if                   of installed marine engines must
                                            water separator may be needed to                        conditions outside their control prevent              generally be less then five percent of the
                                            maintain a sufficiently dry sample. Mass                them from completing the required                     total U.S. sales of that engine model in
                                            flow rates also factor into the torque                  testing. We would expect this to be a                 all applications.

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                                            59072            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            (6) Import-Specific Information at                      certification procedures, or the                      beyond what was required under the
                                            Certification                                           aftermarket conversion kit could be                   primary criteria in § 91.115. We believe
                                              We are requiring additional                           certified using the provisions of 40 CFR              engines with substantially different bore
                                            information to improve our ability to                   part 85, subpart V. This contrasts with               diameters will have combustion and
                                            oversee compliance related to imported                  the provisions in part 91 that allow for              operating characteristics that must be
                                            engines (see § 1045.205). In the                        fuel conversions that can be                          taken into account with unique
                                            application for certification, the                      demonstrated not to increase emission                 engineering. Similarly, adding a
                                            following additional information is                     levels above the applicable standard.                 turbocharger or supercharger changes
                                                                                                    We propose to apply this requirement                  the engine’s combustion and emission
                                            necessary: (1) The port or ports at which
                                                                                                    starting January 1, 2010. (See § 91.1103              control in important ways. We are also
                                            the manufacturer has imported engines
                                                                                                    and § 1045.645.)                                      requiring that all the engines in an
                                            over the previous 12 months, (2) the
                                                                                                                                                          engine family use the same type of fuel.
                                            names and addresses of the agents the                   (8) Special Provisions Related to
                                                                                                                                                          This may have been a simple oversight
                                            manufacturer has authorized to import                   Altitude
                                                                                                                                                          in the current regulations, since all OB/
                                            the engines, and (3) the location of the                   As described in Section IV.C.1, we are             PWC engines operate on gasoline.
                                            test facilities in the United States where              allowing manufacturers to comply with                 However, if a manufacturer were to
                                            the manufacturer will test the engines if               emission standards at high altitudes                  produce an engine model that runs on
                                            we select them for testing under a                      using an altitude kit. Manufacturers                  natural gas or another alternative fuel,
                                            selective enforcement audit. See Section                using altitude kits to comply at altitude             that engine model should be in its own
                                            1.3 of the Summary and Analysis of                      must take steps to describe their altitude            engine family. See Section IV.E.7 for a
                                            Comments for further discussion related                 kits in the application for certification             discussion of dual-fuel engines. Finally
                                            to naming test facilities in the United                 and explain their basis for believing that            we are removing the provision currently
                                            States.                                                 engines with these altitude kits will                 in part 91 related to the engine-cooling
                                            (7) Alternate Fuels                                     comply with emission standards at high                mechanism. Manufacturers pointed out
                                                                                                    altitude. Manufacturers must also                     that raw-water cooling and separate-
                                               The emission standards apply to all                  describe a plan for making information                circuit cooling do not have a significant
                                            spark-ignition engines regardless of the                and parts available such that the                     effect on an engine’s emission
                                            fuel they use. Almost all Marine SI                     widespread use of altitude kits will                  characteristics.
                                            engines operate on gasoline, but these                  reasonably be expected in high-altitude                  The new regulatory language related
                                            engines may also operate on other fuels,                areas. For a more thorough description                to engine labels remains largely
                                            such as natural gas, liquefied petroleum                of these compliance provisions, see the               unchanged from the previous
                                            gas, ethanol, or methanol. The test                     discussion in Section V.E.5 for                       requirements (see § 1045.135). We are
                                            procedures in 40 CFR part 1065 describe                 nonhandheld Small SI engines.                         including a provision to allow
                                            adjustments needed for operating test                                                                         manufacturers to print labels that have
                                            engines with oxygenated fuels.                          F. Other Adjustments to Regulatory
                                                                                                    Provisions                                            a different company’s trademark. Some
                                               In some special cases, a single engine                                                                     manufacturers in other programs have
                                            is designed to alternately run on                          We are moving the regulatory                       requested this flexibility for marketing
                                            different fuels. For example, some                      requirements for marine spark-ignition                purposes.
                                            engines can switch back and forth                       engines from 40 CFR part 91 to 40 CFR                    The warranty provisions are described
                                            between natural gas and LPG. We are                     part 1045. This gives us the opportunity              above. We are adding an administrative
                                            adding a clarification to the regulations               to update the details of our certification            requirement to describe the provisions
                                            to describe how manufacturers would                     and compliance program to be                          of the emission-related warranty in the
                                            submit certification data and divide                    consistent with the comparable                        owners manual (see § 1045.120). We
                                            such engines into engine families. We                   provisions that apply to other engine                 expect that many manufacturers already
                                            would expect a manufacturer to submit                   categories. The following paragraphs                  do this, but believe it is appropriate to
                                            test data on each fuel type. If                         highlight some of the provisions in the               require this as a routine practice.
                                            manufacturers produce engines that run                  new language that may involve                            Certification procedures depend on
                                            only on one fuel where that dedicated-                  noteworthy changes from the current                   establishing deterioration factors to
                                            fuel engine is identical to a dual-fuel                 regulations in part 91. All these                     predict the degradation in emission
                                            engine with respect to that fuel, those                 provisions apply equally to SD/I                      controls that occurs over the course of
                                            engines could be included in the same                   engines, except that they are not subject             an engine’s useful life. This typically
                                            family. This is also true for the second                to the current requirements in 40 CFR                 involves service accumulation in the
                                            fuel. For example, if a manufacturer                    part 91.                                              laboratory to simulate in-use operation.
                                            produces an engine that can run on both                    We are making some adjustments to                  Since manufacturers do in-use testing to
                                            gasoline and LPG and also produces that                 the criteria for defining engine families             further characterize this deterioration
                                            engine model in gasoline-only and LPG-                  (see § 1045.230). The fundamental                     rate, we are specifying that deterioration
                                            only versions without adjusting the                     principle behind engine families is to                factors for certification must take into
                                            calibration or other aspects of that                    group together engines that will have                 account any available data from in-use
                                            configuration, those engines may all be                 similar emission characteristics over the             testing with similar engines. This
                                            included in the same engine family.                     useful life. As a result, all engines                 provision applies in most of our
                                               Once an engine is placed into service,               within an engine family must have the                 emission control programs that involve
                                            someone might want to convert it to                     same approximate bore diameter and                    routine in-use testing. To the extent this
                                            operate on a different fuel. This would                 use the same method of air aspiration                 information is available, it should be
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                                            take the engine out of its certified                    (for example, naturally aspirated vs.                 factored into the certification process.
                                            configuration, so we are requiring that                 turbocharged). Under the previous                     For example, if in-use testing shows that
                                            someone performing such a fuel                          regulation, manufacturers were allowed                emission deterioration is substantially
                                            conversion to go through a certification                the discretion to consider bore and                   higher than that characterized by the
                                            process. We will allow certification of                 stroke dimensions and aspiration                      deterioration factor, we expect the
                                            the complete engine using normal                        method for subdividing engine families                manufacturer to factor the in-use data

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                       59073

                                            into a new deterioration factor, or to                  we are establishing provisions to clarify             stroke outboard engines and many two-
                                            revise durability testing procedures to                 the status of these engines and defining              stroke direct injection outboard engines
                                            better represent the observed in-use                    a path by which these engines can be                  can meet the final HC+NOX standard.
                                            degradation.                                            handled without violating the                         Similarly, although PWC engines tend
                                               Maximum engine power for an engine                   regulations. See Section VIII.C.1 for                 to have higher HC+NOX emissions,
                                            family is an important parameter. For                   more information.                                     presumably due to their higher power
                                            example, maximum engine power                                                                                 densities, many of these engines can
                                            determines the applicable CO standard                   G. Small-Business Provisions                          also meet the new HC+NOX standard.
                                            for engines at or below 40 kW. For                        The OB/PWC market has traditionally                 Although there is currently no CO
                                            bigger engines, emission credits are                    been made up of large businesses. We                  standard for OB/PWC engines, OB/PWC
                                            calculated based on total power output.                 anticipate that the OB/PWC standards                  manufacturers are required to report CO
                                            As a result, we are specifying that                     will be met through the expanded use                  emissions from their engines (see
                                            manufacturers determine their engines’                  of existing cleaner engine technologies.              § 91.107(d)(9)). These emissions are
                                            maximum engine power as the point of                    Small businesses certifying to standards              based on test data from new engines and
                                            maximum engine power on the engine’s                    today are already using technologies                  do not consider deterioration or
                                            nominal power curve (see § 1045.140).                   that could be used to meet the new                    compliance margins. Based on this data,
                                            This value may be established as a                      standards. As a result, we are adopting               all the two-stroke direct injection
                                            design value, but must be determined                    only three small business regulatory                  engines show emissions well below the
                                            consistent with the engine mapping                      relief provisions for small business                  new standards. In addition, the majority
                                            procedures in § 1065.510. The                           manufacturers of OB/PWC engines. We                   of four-stroke engines meet the new CO
                                            manufacturer must adjust the declared                   are allowing small business OB/PWC                    standards as well.
                                            value for maximum engine power if it                    engine manufacturers to be exempt from                   We therefore believe the HC+NOX and
                                            does not fall within the range of values                PLT testing and to use assigned                       CO emission standards will be achieved
                                            from production engines.                                deterioration factors for certification.              by phasing out conventional carbureted
                                               The new requirements related to the                  (EPA will provide guidance to engine                  two-stroke engines and replacing them
                                            application for certification will involve              manufacturers on the assigned                         with four-stroke engines or two-stroke
                                            some new information, most of which is                  deterioration factors prior to                        direct injection engines. This has been
                                            described above, such as installation                   implementation of the new OB/PWC                      the market-driven trend over the last
                                            instructions and a description of how                   standards.) We are also extending the                 five years. Chapter 4 of the Final RIA
                                            engines comply with not-to-exceed                       economic hardship relief to OB/PWC                    presents charts that compare
                                            standards (see § 1045.205). In addition,                engine manufacturers that qualify as                  certification data to the new standards.
                                            we are requiring that manufacturers                     small businesses (see § 1068.250). We
                                            submit projected sales volumes for each                                                                       (2) Implementation Dates
                                                                                                    are defining small business eligibility
                                            family, rather than allowing                            criteria for OB/PWC engine                               We are implementing the new
                                            manufacturers to keep these records and                 manufacturers based on an employee                    emission standards beginning with the
                                            make them available upon request.                                                                             2010 model year. This gives two
                                                                                                    cut-off of 250 employees.
                                            Manufacturers already do this routinely                   In addition to the flexibilities noted              additional years beyond the
                                            and it is helpful to have ready access to               above, all OB/PWC engine                              implementation date of the same
                                            this information to maintain compliance                 manufacturers, regardless of size, will               standards in California. This additional
                                            oversight for such things as emission                   be able to apply for the unusual                      time may be necessary for
                                            credit calculations. We are also                        circumstances hardship in § 1068.245.                 manufacturers that do not sell engine
                                            requiring that each manufacturer                        Finally, all OB/PWC vessel                            models in California or that sell less
                                            identify an agent for service in the                    manufacturers that rely on other                      than their full product lineup into the
                                            United States. For companies based                      companies to provide certified engines                California market. We believe the same
                                            outside the United States, this ensures                 or fuel system components for their                   technology used to meet the 2008
                                            that we will be able to maintain contact                product will be able to apply for the                 standards in California could be used
                                            regarding any official communication                    hardship provisions in § 1068.255.                    nationwide with the additional year
                                            that may be required. We have adopted                                                                         allowed for any engine models not sold
                                            these same requirements for other                       H. Technological Feasibility                          in California. Low-emission engines
                                            nonroad programs.                                       (1) Level of Standards                                sold in California are generally sold
                                               We are requiring that manufacturers                                                                        nationwide as part of manufacturer
                                            use good engineering judgment in all                      Over the past several years,                        compliance strategies for EPA’s 2006
                                            aspects of their effort to comply with                  manufacturers have demonstrated their                 standards. Manufacturers have
                                            regulatory requirements. The                            ability to achieve significant HC+NOX                 indicated that they are calibrating their
                                            regulations at § 1068.5 describe how we                 emission reductions from outboard and                 four-stroke and direct-injection two-
                                            will apply this provision and what we                   personal watercraft engines. This has                 stroke engines to meet the California
                                            will require of manufacturers where we                  largely been accomplished through the                 requirements. To meet the new
                                            disagree with a manufacturer’s                          introduction of two-stroke direct                     standards, manufacturers’ efforts will
                                            judgment.                                               injection engines and conversion to                   primarily center on phasing out their
                                               We are also establishing new defect-                 four-stroke engines. Recent certification             higher-emission carbureted two-stroke
                                            reporting requirements. These                           data for these types of engines show that             engines and producing more of their
                                            requirements are described in Section                   these technologies may be used to                     lower emission engines.
                                            VIII of the preamble to the proposed                    achieve emission levels significantly
                                                                                                                                                          (3) Technological Approaches
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                                            rule.                                                   below the current exhaust emission
                                               It is common practice for one                        standards. In fact, California standards                 Conventional two-stroke engines add
                                            company to produce engine blocks that                   require a 65 percent reduction beyond                 a fuel-oil mixture to the intake air with
                                            a second company modifies for use as                    the current federal standards.                        a carburetor, and use the crankcase to
                                            a marine engine. Since our regulations                    Our own analysis of recent                          force this mixed charge air into the
                                            prohibit the sale of uncertified engines,               certification data shows that most four-              combustion chamber. In the two-stroke

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                                            59074            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            design, the exhaust gases must be                       to those for four-stroke outboard                     certification data for personal watercraft
                                            purged from the cylinder while the fresh                engines.                                              engines show somewhat higher exhaust
                                            charge enters the cylinder. With                           One manufacturer has certified two                 emission levels, so setting the standard
                                            traditional two-stroke designs, the fresh               PWC engine models with oxidation                      at 10 g/kW-hr would likely require
                                            charge, with unburned fuel and oil, will                catalysts. One engine model uses the                  catalysts for many models. Third, it is
                                            push the exhaust gases out of the                       oxidation catalyst in conjunction with a              not clear that two-stroke engines would
                                            combustion chamber as the combustion                    carburetor while the other uses throttle-             be able to meet the more stringent
                                            event concludes. As a result, 25 percent                body fuel injection. In this application,             standard, even with direct injection and
                                            or more of the fresh fuel-oil could pass                the exhaust system is shaped in such a                catalysts. These engines operate with
                                            through the engine unburned. This is                    way to protect the catalyst from water.               lean air-fuel ratios, so reducing NOX
                                            known as scavenging losses.                             The exhaust system is relatively large                emissions with any kind of
                                            Manufacturers have phased out sales of                  compared to the size of the engine. We                aftertreatment is especially challenging.
                                            the majority of their traditional two-                  are not aware of any efforts to develop                  Therefore, unlike the new standards
                                            stroke engines to meet the federal 2006                 a three-way catalyst system for PWC                   for sterndrive and inboard engines, we
                                            OB/PWC exhaust emission standards.                      engines. We are also not aware of any                 are not adopting OB/PWC standards that
                                            However, many of these engines still                    development efforts to package a                      require the use of catalysts. Catalyst
                                            remain in the product mix as a result of                catalyst into the exhaust system of an                technology would be necessary for
                                            emission credits.                                       outboard marine engine. In current                    significant additional control of
                                               One approach to minimizing                           designs, water and exhaust are mixed in               HC+NOX and CO emissions for these
                                            scavenging losses in a two-stroke engine                the exhaust system to help cool the                   engines. While there is good potential
                                            is through the use of direct fuel                       exhaust and tune the engine. Water can                for eventual application of catalyst
                                            injection into the combustion chamber.                  work its way up through the exhaust                   technology to outboard and personal
                                            The primary advantage of direct                         system because the lower end is under                 watercraft engines, we believe the
                                            injection for a two-stroke engine is that               water and varying pressures in the                    technology is not adequately
                                            the exhaust gases can be scavenged with                 exhaust stream can draw water against                 demonstrated at this point. Much
                                            fresh air and fuel can be injected into                 the prevailing gas flow. As discussed in              laboratory and in-water work is needed.
                                            the combustion chamber after the                        Chapter 4 of the Final RIA, saltwater can
                                                                                                                                                          (5) Our Conclusions
                                            exhaust port closes. As a result,                       be detrimental to catalyst performance
                                            hydrocarbon emissions, fuel economy,                    and durability. In addition, outboard                   We believe the final emission
                                            and oil consumption are greatly                         engines are designed with lower units                 standards can be achieved by phasing
                                            improved. Some users prefer two-stroke                  that are designed to be as thin as                    out conventional carbureted two-stroke
                                            direct injection engines over four-stroke               possible to improve the ability to turn               engines in favor of four-stroke engines
                                            engines due to the higher power-to-                     the engine on the back of the boat and                or two-stroke direct injection engines.
                                            weight ratio. Most of the two-stroke                    to reduce drag on the lowest part of the              The four-stroke engines or two-stroke
                                            direct injection engines certified to the               unit. This raises concerns about the                  direct injection engines are already
                                            current OB/PWC emission standards                       placement and packaging of catalysts in               widely available from marine engine
                                            have HC+NOX emissions levels                            the exhaust stream. Certainly, the                    manufacturers. One or both of these
                                            somewhat higher than certified four-                    success of packaging catalysts in                     technologies are currently in place for
                                            stroke engines. However, these engines                  sterndrive and inboard boats in recent                the whole range of outboard and
                                            also typically have lower CO emissions                  development efforts (see Section III)                 personal watercraft engines.
                                            due to the nature of a heterogeneous                    suggests that catalysts may be feasible                 The new exhaust emission standards
                                            charge. By injecting the fuel directly                  for outboards with additional effort.                 represent the greatest degree of emission
                                            into a charge of air in the combustion                  However, this has not yet been                        control achievable in the contemplated
                                            chamber, localized areas of lean air/fuel               demonstrated and significant                          time frame. While manufacturers can
                                            mixtures are created where CO is                        development efforts will be necessary.                meet the standards with their full
                                            efficiently oxidized.                                                                                         product line in 2010, requiring full
                                               OB/PWC manufacturers are also                        (4) Regulatory Alternatives                           compliance with a nationwide program
                                            achieving lower emissions through the                      We considered a level of 10 g/kW-hr                earlier, such as in the same year that
                                            use of four-stroke engine designs.                      HC+NOX for OB/PWC engines above 40                    California introduces new emission
                                            Because a single combustion event takes                 kW with an equivalent percent                         standards, will pose an unreasonable
                                            place over two revolutions of the                       reduction below the new standards for                 requirement. Allowing two years
                                            crankshaft, the fresh fuel-air charge can               engines at or below 40 kW. This second                beyond California’s requirements is
                                            enter the combustion chamber after the                  tier of standards could apply in the 2012             necessary to allow manufacturers to
                                            exhaust valve is closed. This minimizes                 or later time frame. Such a standard                  certify their full product line to the new
                                            scavenging losses. Manufacturers                        would be consistent with currently                    standards, not only those products they
                                            currently offer four-stroke marine                      certified emission levels from a                      will make available in California. Also,
                                            engines with maximum engine power                       significant number of four-stroke                     as described above, we believe the
                                            ranging from 1.5 to more than 250 kW.                   outboard engines. We had three                        catalyst technology that will be required
                                            These engines are available with                        concerns with adopting this second tier               to meet emission standards substantially
                                            carburetion, throttle-body fuel injection,              of OB/PWC standards. First, while some                more stringent than we are adopting has
                                            or multi-point fuel injection. Based on                 four-stroke engines may be able to meet               not been adequately demonstrated for
                                            the certification data, whether the                     a 10 g/kW-hr standard with improved                   outboard or personal watercraft engines.
                                            engine is carbureted or fuel-injected                   calibrations, it is not clear that all                As such, we believe the new standards
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                                            does not have a significant effect on                   engines could meet this standard                      for HC+NOX and CO emissions are the
                                            combined HC+NOX emissions. For PWC                      without applying catalyst technology.                 most stringent possible in this
                                            engines, the HC+NOX levels are                          As described in Section IV.H.3, we                    rulemaking. More time to gain
                                            somewhat higher, primarily due to their                 believe it is not appropriate to base                 experience with catalysts on sterndrive
                                            higher power-to-weight ratio. CO                        standards in this rule on the use of                  and inboard engines and a substantial
                                            emissions from PWC engines are similar                  catalysts for OB/PWC engines. Second,                 engineering effort to apply that learning

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                                            to outboard and personal watercraft                     us the opportunity to update the details              However, if an amphibious vehicle or
                                            engines may allow us to pursue more                     of our certification and compliance                   other recreational vehicle with an
                                            stringent standards in a future                         program that are consistent with the                  engine at or below 19 kW is not subject
                                            rulemaking.                                             comparable provisions that apply to                   to standards under part 1051, its engine
                                               As discussed in Section VII, we do                   other engine categories and describe                  will need to meet the Small SI engine
                                            not believe the final standards will have               regulatory requirements in plain                      standards. We also do not consider
                                            negative effects on energy, noise, or                   language. Most of the change in                       vehicles such as go karts or golf carts to
                                            safety and may lead to some positive                    regulatory text provides improved                     be subject to part 1051 because they are
                                            effects.                                                clarity without changing procedures or                not intended for high-speed operation
                                            V. Small SI Engines                                     compliance obligations. Where there is                over rough terrain; these engines are
                                                                                                    a change that warrants further attention,             also subject to Small SI engine
                                            A. Overview                                             we describe the need for the change                   standards. The Small SI engine
                                               This section applies to new nonroad                  below. For nonhandheld engines,                       standards do not apply to engines used
                                            spark-ignition engines with rated power                 manufacturers must comply with all the                in scooters or other vehicles that qualify
                                            at or below 19 kW (‘‘Small SI engines’’).               provisions in part 1054 once the Phase                as motor vehicles.
                                            These engines are most often used in                    3 standards begin to apply in 2011 or                    Consistent with the current regulation
                                            lawn and garden applications, typically                 2012. For handheld engines,                           under 40 CFR part 90, Small SI engine
                                            by individual consumers; they are many                  manufacturers must comply with the                    standards apply to spark-ignition
                                            times also used by commercial operators                 provisions in part 1054 starting in 2010.             engines used as generators or for other
                                            and they provide power for a wide range                 Note, however, that part 1054 specifies               auxiliary power on marine vessels, but
                                            of other home, industrial, farm, and                    that certain provisions do not apply for              not to marine propulsion engines. As
                                            construction applications. The engines                  handheld engines until sometime after                 described below, we are finalizing more
                                            are typically air-cooled single-cylinder                2010.                                                 stringent exhaust emission standards
                                            models, though Class II engines (with                     Engines and equipment subject to part               that will apply uniquely to marine
                                            displacement over 225 cc) may have two                  1054 are also subject to the general                  generator engines.
                                            or three cylinders, and premium models                  compliance provisions in 40 CFR part
                                                                                                                                                             Engines with rated power above 19
                                            with higher power may be water-cooled.                  1068. These include prohibited acts and
                                                                                                                                                          kW are subject to emission standards
                                               We have already adopted two phases                   penalties, exemptions and importation
                                                                                                                                                          under 40 CFR part 1048. However, we
                                            of exhaust standards for Small SI                       provisions, selective enforcement
                                                                                                    audits, defect reporting and recall, and              adopted a special provision under part
                                            engines. The first phase of standards for                                                                     1048 allowing engines with total
                                            nonhandheld engines generally led                       hearing procedures. See Section VIII of
                                                                                                    the preamble to the proposed rule for                 displacement at or below 1000 cc and
                                            manufacturers to convert any two-stroke                                                                       with rated power at or below 30 kW to
                                            engines to four-stroke engines. These                   further discussion of these general
                                                                                                    compliance provisions.                                meet the applicable Small SI engine
                                            standards applied only at the time of                                                                         standards instead of the standards in
                                            sale. The second phase of standards for                 B. Engines Covered by This Rule                       part 1048. For any engines that are
                                            nonhandheld engines generally led                                                                             certified using this provision, any
                                            manufacturers to apply emission control                   This action includes more stringent
                                                                                                    exhaust emission standards for new                    emission standards that we adopt for
                                            technologies, such as in-cylinder                                                                             Class II engines and equipment in this
                                            controls and improved carburetion, with                 nonroad engines with rated power at or
                                                                                                    below 19 kW that are sold in the United               rulemaking (or in later rulemakings)
                                            the additional requirement that                                                                               will also apply at the same time. Since
                                            manufacturers needed to meet emission                   States. The exhaust standards are for
                                                                                                    nonhandheld engines (Classes I and II).               these engines are not required to meet
                                            standards over a useful life period.                                                                          the Small SI engine standards we have
                                               As described in Section I, this final                As described in Section I, handheld
                                                                                                    Small SI engines (Classes III, IV, and V)             not included them in the analyses
                                            rule is the result of a Congressional
                                                                                                    are also subject to standards, but we are             associated with this final rule.
                                            mandate that springs from the new
                                            California ARB standards. In 2003,                      not changing the level of exhaust                     (2) Maximum Engine Power and Engine
                                            California ARB adopted more stringent                   emission standards for these engines. As              Displacement
                                            standards for nonhandheld engines.                      described in Section VI, we are also
                                                                                                    adopting new standards for controlling                   Under the current regulations, ‘‘rated
                                            These standards target emission
                                                                                                    evaporative emissions from Small SI                   power’’ and ‘‘power rating’’ are
                                            reductions of approximately 35 percent
                                                                                                    engines, including both handheld and                  determined by the manufacturer with
                                            below EPA’s Phase 2 standards and are
                                                                                                    nonhandheld engines. Certain of the                   little or no direction for selecting
                                            based on the expectation that
                                                                                                    provisions discussed in this Section V                appropriate values. We are establishing
                                            manufacturers will use relatively low-
                                                                                                    apply to both handheld and                            an objective approach to establishing
                                            efficiency three-way catalysts to control
                                                                                                    nonhandheld engines, as noted.                        the alternative term ‘‘maximum engine
                                            HC+NOX emissions. California ARB did
                                                                                                    Reference to both handheld and                        power’’ under the regulations (see
                                            not change the applicable CO emission
                                                                                                    nonhandheld engines also includes                     § 1054.140). This value has regulatory
                                                                                                    marine auxiliary engines subject to the               significance for Small SI engines only to
                                               We are adding these new regulations
                                                                                                    Small SI engine standards for that size               establish whether or not engines are
                                            for Small SI engines in 40 CFR part 1054
                                                                                                    engine.                                               instead subject to Large SI engine
                                            rather than changing the current
                                                                                                                                                          standards. Determining maximum
                                            regulations in 40 CFR part 90. This gives               (1) Engines Covered by Other Programs                 engine power is therefore relevant only
                                              96 California ARB also adopted new fuel                 The Small SI engine standards do not                for those engines that are approaching
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                                            evaporative emission standards for equipment using      apply to recreational vehicles covered                the line separating these two engine
                                            handheld and nonhandheld engines. These                 by EPA emission standards in 40 CFR                   categories. We are requiring that
                                            included tank permeation standards for both types       part 1051. The regulations in part 1051               manufacturers determine and report
                                            of equipment and hose permeation, running loss,
                                            and diurnal emission standards for nonhandheld
                                                                                                    apply to off-highway motorcycles,                     maximum engine power if their
                                            equipment. See Section VI for additional                snowmobiles, all-terrain vehicles, and                emission-data engine has a maximum
                                            information related to evaporative emissions.           certain offroad utility vehicles.                     modal power at or above 15 kW (at or

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                                            59076            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            above 25 kW if engine displacement is                   allow manufacturers to make a single                  able to identify which engines qualify
                                            at or below 1000 cc).                                   product that meets all applicable EPA                 for this exemption.
                                               Similarly, the regulations depend on                 standards for both stationary and                        In the rulemaking for recreational
                                            engine displacement to differentiate                    nonroad applications.                                 vehicles, we chose not to apply
                                            engines for the applicability of different                 The Clean Air Act provides for a                   standards to hobby products by
                                            standards. The regulations currently                    different regulatory approach for                     exempting all reduced-scale models of
                                            provide no objective direction or                       engines used solely in competition.                   vehicles that were not capable of
                                            restriction regarding the determination                 Rather than relying on engine design                  transporting a person (67 FR 68242,
                                            of engine displacement. We are defining                 features that serve as inherent indicators            November 8, 2002). We are extending
                                            displacement as the intended swept                      of dedicated competitive use, we have                 that same provision to handheld and
                                            volume of the engine to the nearest                     taken the approach in other programs of               nonhandheld Small SI engines. (See
                                            cubic centimeter, where the engine’s                    more carefully differentiating                        § 1054.5.)
                                            swept volume is the product of the                      competition and noncompetition                           In the rulemaking to establish Phase
                                            internal cross-sectional area of the                    models in ways that reflect the nature of             2 emission standards, we adopted an
                                            cylinders, the stroke length, and the                   the particular products. In the case of               exemption for handheld and
                                            number of cylinders.                                    Small SI engines, we believe there are                nonhandheld engines used in rescue
                                               For both maximum engine power and                    no particular engine design features that             equipment. The regulation does not
                                            displacement, the declared values must                  allow us to differentiate between                     require any request, approval, or
                                            be within the range of the values from                  engines that are used solely for                      recordkeeping related to the exemption.
                                            production engines considering normal                   competition from those with racing-type               We discovered while conducting the
                                            production variability. This does not                   features that are not used solely for                 SBAR Panel described in Section VI.G
                                            imply that production engines need to                   competition. We are requiring that                    that some companies are producing
                                            be routinely tested or measured to verify               handheld and nonhandheld equipment                    noncompliant engines under this
                                            the declared values, but it serves to                   with engines meeting all the following                exemption. As a result, we are keeping
                                            define a range of appropriate values and                criteria will be considered as being used             this exemption but are adding several
                                            provides a mechanism by which we can                    solely for competition:                               provisions to allow us to better monitor
                                            ensure that the declared values conform                                                                       how it is used (see § 1054.660). We are
                                                                                                       • The engine (or equipment in which
                                            to the production engines in question. If                                                                     also keeping the requirement that
                                                                                                    the engine is installed) may not be
                                            production engines are found to have                                                                          equipment manufacturers use certified
                                                                                                    displayed for sale in any public
                                            different values for maximum engine                                                                           engines if they are available. We are
                                            power or displacement, this should be                                                                         updating this provision by adding a
                                                                                                       • Sale of the equipment in which the
                                            noted in a change to the application for                                                                      requirement that equipment
                                                                                                    engine is installed must be limited to                manufacturers use an engine that has
                                                                                                    professional competitors or other                     been certified to less stringent Phase 1
                                            (3) Exempted or Excluded Engines                        qualified competitors;                                or Phase 2 standards if such an engine
                                               Under the Clean Air Act, engines that                   • The engine must have performance                 is available. We are explicitly allowing
                                            are used in stationary applications are                 characteristics that are substantially                engine manufacturers to produce
                                            not nonroad engines. States are                         superior to noncompetitive models;                    engines for this exemption (with
                                            generally preempted from setting                           • The engines must be intended for                 permanent labels identifying the
                                            emission standards for nonroad engines                  use only in competition events                        particular exemption), but only if they
                                            but this preemption does not apply to                   sanctioned (with applicable permits) by               have a written request for each
                                            stationary engines. EPA has adopted                     a state or federal government agency or               equipment model from the equipment
                                            emission standards for stationary                       other widely recognized public                        manufacturer. We are further requiring
                                            compression-ignition engines sold or                    organization, with operation limited to               that the equipment manufacturer notify
                                            used in the United States (71 FR 39154,                 competition events, performance-record                EPA of the intent to produce emergency
                                            July 11, 2006). EPA also recently                       attempts, and official time trials.                   equipment with exempted engines.
                                            adopted emission standards for                             We are also including a provision                  Also, to clarify the scope of this
                                            stationary spark-ignition engines in a                  allowing us to approve an exemption for               provision, we are defining ‘‘emergency
                                            separate action (73 FR 3568, January 18,                cases in which an engine manufacturer                 rescue situations’’ as firefighting or
                                            2008). In pursuing emission standards                   can provide clear and convincing                      other situations in which a person is
                                            for stationary engines, we have                         evidence that an engine will be used                  retrieved from imminent danger.
                                            attempted to maintain consistency                       solely for competition even though not                Finally, we are clarifying that EPA may
                                            between stationary and nonroad                          all the above criteria apply for a given              discontinue the exemption on a case-by-
                                            requirements as much as possible. As                    situation. This may occur, for example,               case basis if we find that such engines
                                            explained in the stationary rule,                       if a racing association specifies a                   are not used solely for emergency and
                                            stationary spark-ignition engines below                 particular engine model in the                        rescue equipment or if we find that a
                                            19 kW are almost all sold into                          competition rules, where that engine                  certified engine is available to power the
                                            residential applications so we believe it               has design features that prevent it from              equipment safely and practically. We
                                            is not appropriate to include                           being certified, or from being used for               are applying the provisions of this
                                            requirements for owners or operators                    purposes other than competition.                      section for new equipment built on or
                                            that will normally be part of a program                    Engine manufacturers will make their               after January 1, 2010.
                                            for implementing standards for                          request for each new model year and we                   The current regulations also specify
                                            stationary engines. As a result, we                     will deny a request for future                        an exemption allowing individuals to
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                                            indicated in the stationary rule that it is             production if there are indications that              import up to three nonconforming
                                            most appropriate to set exhaust and                     some engines covered by previous                      handheld or nonhandheld engines one
                                            evaporative emission standards for                      requests are not being used solely for                time. We are keeping this exemption
                                            stationary spark-ignition engines and                   competition. Competition engines are                  with three adjustments (see § 1054.630).
                                            equipment below 19 kW as if they were                   produced and sold in very small                       First, we are allowing this exemption
                                            used in nonroad applications. This will                 quantities so manufacturers should be                 only for used equipment. Allowing

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                       59077

                                            importation of new equipment under                      numerical values remain unchanged                     those engines unable to achieve the
                                            this exemption is not consistent with                   from the Phase 2 standards.                           level of the new standards (either with
                                            the intent of the provision, which is to                                                                      or without a catalyst), manufacturers
                                                                                                    (1) Emission Standards
                                            allow people to move to the United                                                                            may elect to rely on emission credits to
                                            States from another country and                            Extensive testing and dialogue with                comply with emission standards. We
                                            continue to use lawn and garden                         manufacturers and other interested                    believe all manufacturers producing
                                            equipment that may already be in their                  parties has led us to a much better                   engines formerly included in Class I–B
                                            possession. Second, we are allowing                     understanding of the capabilities and                 also have a wide enough range of engine
                                            such an importation once every five                     limitations of applying emission control              models that they will be able to generate
                                            years but are requiring a statement that                technologies to nonhandheld Small SI                  sufficient credits to meet standards
                                            the person importing the exempted                       engines. As described in the Final RIA,               across the full product line. (See
                                            equipment has not used this provision                   we have collected a wealth of                         § 1054.101 and § 1054.801.)
                                            in the preceding five years. The current                information related to the feasibility,                  We are making another slight change
                                            regulations allow only one importation                  performance characteristics, and safety               to the definition of handheld engines
                                            in a person’s lifetime without including                implications of applying catalyst                     that may affect whether an engine is
                                            any way of making that enforceable. We                  technology to these engines. We have                  subject to handheld or nonhandheld
                                            believe the new combination of                          concluded within the context of Clean                 standards. The handheld definition
                                            provisions represents an appropriate                    Air Act section 213 that it is appropriate            relies on a weight threshold for certain
                                            balance between preserving the                          to establish emission standards that are              engines. As recently as 1999, we
                                            enforceability of the exemption within                  consistent with those adopted by                      affirmed that the regulation should
                                            the normal flow of personal property for                California ARB. We are finalizing                     allow for the fact that switching to a
                                            people coming into the country. Third,                  HC+NOX emission standards of 10.0                     heavier four-stroke engine to meet
                                            we are no longer requiring submission                   g/kW-hr for Class I engines starting in               emission standards might
                                            of the taxpayer identification number                   the 2012 model year, and 8.0 g/kW-hr                  inappropriately cause an engine to no
                                            since this is not essential for ensuring                for Class II engines starting in the 2011             longer qualify as a handheld engine (64
                                            compliance. We are applying these                       model year (see § 1054.105). For both                 FR 5252, February 3, 1999). The
                                            changes starting January 1, 2010.                       classes of nonhandheld engines we are                 regulation accordingly specifies that the
                                                                                                    maintaining the existing CO standard of               weight limit is 20 kilograms for one-
                                            C. Final Requirements                                   610 g/kW-hr.                                          person augers and 14 kilograms for
                                                                                                       We are eliminating the defined                     other types of equipment, based on the
                                              A key element of the new                              subclasses for the smallest sizes of
                                            requirements for Small SI engines is the                                                                      weight of the engine that was in place
                                                                                                    nonhandheld engines starting with                     before applying emission control
                                            more stringent exhaust emission                         implementation of the Phase 3
                                            standards for nonhandheld engines. We                                                                         technologies. We believe it is
                                                                                                    standards. Under the current regulations              impractical to base a weight limit on
                                            are also finalizing several changes to the              in part 90, Class I-A is designated for               product specifications that have become
                                            certification program that will apply to                engines with displacement below 66 cc                 difficult to establish. We are therefore
                                            both handheld and nonhandheld                           that may be used in nonhandheld                       increasing each of the specified weight
                                            engines. For example, we are clarifying                 applications. To address the                          limits by two kilograms, representing
                                            the process for selecting an engine                     technological constraints of these                    the approximate additional weight
                                            family’s useful life, which defines the                 engines, all the current requirements for             related to switching to a four-stroke
                                            length of time over which                               these engines are the same as for                     engine, and applying the new weight
                                            manufacturers are responsible for                       handheld engines. Class I-B is similarly              limit to all engines and equipment (see
                                            meeting emission standards. We are also                 designated for engines with                           § 1054.801).
                                            adding several provisions to update the                 displacement between 66 and 100 cc                       Finally, we are revising the list of
                                            program for allowing manufacturers to                   that may be used in nonhandheld                       applications identified in the handheld
                                            use emission credits to show that they                  applications. These engines are                       definition as being subject to the
                                            meet emission standards. The following                  currently subject to a mix of provisions              handheld standards. We are specifically
                                            sections describe the elements of this                  that result in an overall stringency that             adding hand-supported jackhammers or
                                            rule.                                                   lies between handheld and                             rammer/compactor to the handheld
                                              The timing for implementation of the                  nonhandheld engines. We are revising                  definition as we have approved these
                                            new exhaust emission standards is                       the regulations such that engines at or               types of applications in the past as
                                            described below. Unless we specify                      below 80 cc are subject to the Phase 3                meeting the attributes laid out in the
                                            otherwise, all the additional regulatory                standards for handheld engines and                    definition. We are removing the ‘‘one-
                                            changes will apply when engines are                     equipment in part 1054 starting in the                person’’ term from the auger description
                                            subject to the emission standards and                   2010 model year. We are allowing                      in the handheld definition because
                                            the other provisions under 40 CFR part                  engines at or below 80 cc to be used                  some augers can be operated by two
                                            1054. This will be model year 2012 for                  without restriction in nonhandheld                    people, but still have other attributes
                                            Class I engines and model year 2011 for                 equipment. The 80 cc threshold aligns                 that would lead to the equipment being
                                            Class II engines. For handheld engines,                 with the California ARB program. For                  considered handheld. We are also
                                            we are generally requiring that                         nonhandheld engines above 80 cc, we                   removing the specific mention of pumps
                                            manufacturers comply with the                           are treating them in every way as Class               and generators from the handheld
                                            provisions of part 1054, including the                  I engines. Based on the fact that it is               definition if they are below the specified
                                            certification provisions, starting in the               more difficult for smaller displacement               weight limit. With the change noted
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                                            2010 model year. These new                              engines to achieve the same g/kW-hr                   earlier that allows manufacturers to use
                                            requirements apply to handheld engines                  emission level as larger displacement                 engines below 80cc in either handheld
                                            unless stated otherwise. For                            engines, it will be more of a challenge               or nonhandheld applications, we
                                            convenience we refer to the handheld                    for manufacturers to achieve a 10.0                   believe these applications no longer
                                            emission standards in part 1054 as                      g/kW-hr HC+NOX level on these                         need to be cited for special treatment in
                                            Phase 3 standards even though the                       smallest Class I engines. However, for                the handheld definition.

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                                            59078            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                               The regulations in part 90 allow                     three-way catalysts. As a result,                     useful life values, giving manufacturers
                                            manufacturers to rely on altitude kits to               manufacturers are offering new products               the responsibility to select the useful
                                            comply with emission requirements at                    with more than a 99 percent reduction                 life that was most appropriate for their
                                            high altitude. We are continuing this                   in CO and have expressed their intent                 engines and the corresponding types of
                                            approach but are clarifying that all                    to offer only these advanced-technology               equipment. The preamble to the Phase
                                            nonhandheld engines must comply with                    engines in the near future. They have                 2 final rule expressed a remaining
                                            Phase 3 standards without altitude kits                 stated that these low-CO engines are                  concern that manufacturers might not
                                            at barometric pressures above 94.0 kPa,                 responsive to market demand. We are                   select the most appropriate useful life
                                            which corresponds to altitudes up to                    establishing a CO standard of 5.0 g/kW-               value. This concern related to both
                                            about 2,000 feet above sea level (see                   hr CO for marine generator engines to                 ensuring effective in-use emission
                                            § 1054.115). This will ensure that all                  reflect the recent trend in marine                    control and maintaining the integrity of
                                            areas east of the Rocky Mountains and                   generator engine designs (see                         emission-credit calculations. The
                                            most of the populated areas in Pacific                  § 1054.105). We believe this standard is              preamble also stated our intent to
                                            Coast states will have compliant engines                necessary to prevent backsliding in CO                periodically review the manufacturers’
                                            without depending on engine                             emissions that could occur if new                     decisions to determine whether
                                            modifications. This becomes                             manufacturers were to attempt to enter                modifications to these rules would be
                                            increasingly important as we anticipate                 the market with less expensive, high-CO               appropriate.
                                            manufacturers relying on technologies                   designs. See Section II for a discussion                 The regulations in § 90.105 provide a
                                            that are sensitive to controlling air-fuel              of air quality concerns related to CO                 benchmark for determining the
                                            ratio for reducing emissions. Engine                    emissions.                                            appropriate useful life value for an
                                            manufacturers must identify in the                        At this time, we are continuing the                 engine family. The regulations direct
                                            owner’s manual the altitude ranges for                  current regulatory approach for                       manufacturers to select the useful life
                                            proper engine performance and                           wintertime engines (e.g., engines used                value that ‘‘most closely approximates
                                            emission control that are expected with                 exclusively to power equipment such as                the expected useful lives of the
                                            and without the altitude kit. The                       snowthrowers and ice augers). Under                   equipment into which the engines are
                                            owner’s manual must also state that                     this final rule, the HC+NOX exhaust                   anticipated to be installed.’’ To maintain
                                            operating the engine with the wrong                     emission standards will be optional for               a measure of accountability, we
                                            engine configuration at a given altitude                wintertime engines. However, if a                     included a requirement that
                                            may increase its emissions and decrease                 manufacturer chooses to certify its                   manufacturers document the basis for
                                            fuel efficiency and performance. See                    wintertime engines to such standards,                 their selected useful life values. The
                                            Section V.E.5 for further discussion                    those engines will be subject to all the              suggested data included, among other
                                            related to the deployment of altitude                   requirements as if the optional                       things: (1) Surveys of the life spans of
                                            kits where the manufacturers rely on                    standards were mandatory. We are                      the equipment in which the subject
                                            them for operation at higher altitudes.                 adopting a definition of wintertime                   engines are installed; (2) engineering
                                               We are adopting a slightly different                 engines to clarify which engines qualify              evaluations of field-aged engines to
                                            approach for handheld engines with                      for these special provisions.                         ascertain when engine performance
                                            respect to altitude. Since we are not                     All engines subject to standards must               deteriorates to the point where utility
                                            adopting more stringent exhaust                         continue to control crankcase emissions.              and/or reliability is impacted to a degree
                                            emission standards, we believe it is                    In the case of snowthrower engines,                   sufficient to necessitate overhaul or
                                            appropriate to adopt provisions that are                crankcase emissions may be vented to                  replacement; and (3) failure reports from
                                            consistent with current practice at this                the ambient air as long as manufacturers              engine customers. These regulatory
                                            time. We are therefore requiring                        take crankcase emissions into account                 provisions identify the median time to
                                            handheld engines to comply with the                     in demonstrating compliance with                      retirement for in-use equipment as the
                                            current standards without altitude kits                 exhaust emission standards.                           marker for defining the useful life
                                            at barometric pressures above 96.0 kPa,                 (2) Useful Life                                       period. This allows manufacturers to
                                            which will allow for testing in most                                                                          consider that equipment models may
                                            weather conditions at all altitudes up to                 The Phase 2 standards for Small SI                  fail before the engine has reached the
                                            about 1,100 feet above sea level.                       engines included the concept that                     point of failure and that engines may be
                                               Spark-ignition engines used for                      manufacturers are responsible for                     installed in different types of equipment
                                            marine auxiliary power (i.e., marine                    meeting emission standards over a                     with varying usage patterns. Engines
                                            generator engines) are covered by the                   useful life period. The useful life                   used in different types of equipment, or
                                            same regulations as land-based engines                  defines the design target for ensuring                even engines used in the same
                                            of the same size. However, the marine                   the durability of emission controls                   equipment models used by different
                                            generator versions of Small SI engines                  under normal in-use operation for                     operators, may experience widely
                                            are able to make use of ambient water                   properly maintained engines. Given the                varying usage rates. The manufacturer is
                                            for enhanced cooling of the engine and                  very wide range of engine applications,               expected to make judgments that take
                                            exhaust system. Exhaust systems for                     from very low-cost consumer products                  this variability into account when
                                            these engines are water-jacketed to                     to commercial models designed for                     estimating the median life of in-use
                                            maintain low surface temperatures to                    long-term continuous operation, we                    engines and equipment.
                                            minimize the risk of fires on boats,                    determined that a single useful life                     Several manufacturers have made a
                                            where the generator is often installed in               value for all products, which is typical              good faith effort to select appropriate
                                            small compartments within the boat.                     for other engine programs, was not                    useful life values for their engine
                                            Manufacturers of marine generator                       appropriate for Small SI engines. We                  families, either by selecting only the
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                                            engines have recently developed                         proposed at that time to determine the                highest value, or by selecting higher
                                            advanced technology in an effort to                     useful life for an engine family based on             values for families that appear more
                                            improve fuel consumption and CO                         specific criteria, but commenters                     likely to be used in commercial
                                            emission controls for marine generators.                suggested that such a requirement was                 applications. At the same time, we have
                                            This advanced technology includes the                   overly rigid and unnecessary. The final               observed several instances in which
                                            use of electronic fuel injection and                    rule instead specified three alternative              engine models are installed in

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                       59079

                                            commercial equipment and marketed as                    operate that long. We believe the                     more stringent emission standards. The
                                            long-life products but are certified to the             inherent testing burden and compliance                exhaust ABT program is also structured
                                            minimum allowable useful life period.                   liability is enough to avoid such a                   to avoid delay of the transition to the
                                               After assessing several ideas, we                    problem, but we are including the                     new exhaust emission controls. As
                                            chose to adopt an approach that                         specified maximum values                              described in Section VI.D, we are
                                            preserves the fundamental elements of                   corresponding with the applicable                     establishing a separate evaporative ABT
                                            the current provisions related to useful                useful life for comparable diesel engines             program for fuel tanks used in Small SI
                                            life but clarifies and enhances its                     or Large SI engines. We are not allowing              equipment. Credits may not be
                                            implementation (see § 1054.107).                        for longer useful life values for                     exchanged between the exhaust ABT
                                            Manufacturers will continue to select                   handheld engines.                                     program and the evaporative ABT
                                            the most appropriate useful life from the                  Third, we are requiring that engines               program.
                                            same nominal values to best match the                   and equipment be labeled to identify the                 The exhaust ABT program has three
                                            expected in-use lifetime of the                         applicable useful life period. The                    main components. Averaging means the
                                            equipment into which the engines in the                 current requirement allows                            exchange of emission credits between
                                            engine family will be installed.                        manufacturers to identify the useful life             engine families within a given engine
                                            Manufacturers must continue to                          with code letters on the engine’s                     manufacturer’s product line for a
                                            document the information supporting                     emission control information label, with              specific model year. Engine
                                            their selected useful life. We are                      the numerical value of the useful life                manufacturers divide their product line
                                            adopting three provisions to address                    spelled out in the owner’s manual. We                 into ‘‘engine families’’ that are
                                            remaining concerns with the process of                  believe it is important for equipment                 comprised of engines expected to have
                                            selecting useful life values.                           manufacturers and consumers to be able                similar emission characteristics
                                               First, for manufacturers not selecting               to find an unambiguous designation                    throughout their useful life. Averaging
                                            the highest available nominal value for                 showing the engine manufacturer’s                     allows a manufacturer to certify one or
                                            useful life, we expect to routinely                     expectations about the useful life of the             more engine families at levels above the
                                            review the information to confirm that                  engine. Comments on the proposed rule                 applicable emission standard, but below
                                            it complies with the regulation. Where                  also indicated an interest in using                   a set upper limit. This level then
                                            our review indicates that the selected                  descriptive terms to identify the useful              becomes the applicable standard for all
                                            useful life may not be appropriate for an               life on the label. We believe any                     the engines in that engine family, for
                                            engine family, we may request further                   terminology will communicate less                     purposes of certification, in-use testing,
                                            justification. If we determine from                     effectively than the numerical value of               and the like. However, the increased
                                            available information that a longer                     the useful life, but we will allow                    emissions must be offset by one or more
                                            useful life is appropriate, the                         manufacturers to use specified                        engine families within that
                                            manufacturer must either provide                        descriptive terms in addition to the                  manufacturer’s product line that are
                                            additional justification or select a longer             number of hours.                                      certified below the same emission
                                            useful life for that engine family. We                     We are also including a provision in               standard, such that the average standard
                                            will encourage manufacturers to use the                 the final rule stating that the useful life           from all the manufacturer’s engine
                                            new provisions related to preliminary                   is defined as a five-year period if the               families, weighted by engine power,
                                            approval in § 1054.210 if there is any                  engine has not yet exceeded the                       regulatory useful life, and production
                                            uncertainty related to the useful life                  specified number of operating hours                   volume, is at or below the level of the
                                            selection. We would rather work                         during that time. This is consistent with             emission standard. Banking means the
                                            together early to establish this in the                 our other engine programs. This does                  retention of emission credits by the
                                            certification process rather than                       not affect the certification process. If we           engine manufacturer for use in
                                            reviewing a completed application for                   test an in-use engine within the five-                averaging or trading for future model
                                            certification to evaluate whether the                   year useful life period and there is no               years. Trading means the exchange of
                                            completed durability demonstration is                   clear indication that it has not yet                  emission credits between engine
                                            sufficient.                                             exceeded the specified number of                      manufacturers which can then be used
                                               Second, we are modifying the                         operating hours, it would need to meet                for averaging purposes, banked for
                                            regulations to allow nonhandheld                        applicable emission standards.                        future use, or traded to another engine
                                            engine manufacturers to select a useful                 Conversely, if an engine has not yet                  manufacturer.
                                            life value that is longer than the three                exceeded the number of operating hours                   Because we are not adopting any
                                            specified nominal values.                               but the engine is six years old, it is no             change in the general equation under
                                            Manufacturers may choose to do this for                 longer required to meet emission                      which emission credits are calculated,
                                            the marketing advantage of selling a                    standards.                                            EPA is allowing manufacturers to use
                                            long-life product or they may want to                                                                         Phase 2 credits generated under the part
                                            generate emission credits that                          (3) Averaging, Banking, and Trading                   90 ABT program for engines that are
                                            correspond to an expected lifetime that                   EPA has included averaging, banking,                certified in the Phase 3 program under
                                            is substantially longer than we would                   and trading (ABT) programs in most of                 part 1054, within the limits described
                                            otherwise allow. We are allowing                        the emission control programs for                     below. Furthermore, even though we are
                                            manufacturers to select longer useful                   highway and nonroad engines. EPA’s                    not establishing new exhaust emission
                                            life values in 100-hour increments, up                  existing Phase 2 regulations for Small SI             standards for handheld engines, the
                                            to 3,000 hours for Class I engines and up               engines include an exhaust ABT                        handheld engine regulations are
                                            to 5,000 hours for Class II engines.                    program (see 40 CFR 90.201 through                    migrating to part 1054. Therefore,
                                            Durability testing for certification will               90.211). We are adopting an ABT                       handheld engines will be included in
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                                            need to correspond to the selected                      program for the Phase 3 HC+NOX                        the new ABT program under part 1054
                                            useful life period. We have considered                  exhaust emission standards that is                    with one change in the overall program
                                            the possibility that a manufacturer                     similar to the existing program (see part             as described below.
                                            might overstate an engine family’s                      1054, subpart H). The new exhaust ABT                    Under an ABT program, averaging is
                                            useful life to generate emission credits                program is intended to enhance the                    allowed only between engine families in
                                            while knowing that engines may not                      ability of engine manufacturers to meet               the same averaging set, as defined in the

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                                            59080            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            regulations. For the exhaust ABT                        the number of handheld engines for                    caps as currently specified in the part 90
                                            program, we are separating handheld                     which a manufacturer can use emission                 ABT regulations.
                                            engines and nonhandheld engines into                    credits from their nonhandheld engines                   For nonhandheld engines we are
                                            two distinct averaging sets starting with               to 30,000 per year. We believe these                  adding two special provisions related to
                                            the 2011 model year. Under the new                      provisions allow for engine                           the transition from Phase 2 to Phase 3
                                            program, credits may generally be used                  manufacturers to continue producing                   standards in § 1054.740. First, we are
                                            interchangeably between Class I and                     these handheld engines for use in                     providing incentives for manufacturers
                                            Class II engine families, with a limited                existing handheld models of low-                      to produce and sell engines certified at
                                            restriction on Phase 3 credits during                   volume equipment applications while                   or below the Phase 3 standards before
                                            model years 2011 and 2012 as noted                      preventing new high-emitting handheld                 the standards are scheduled to be
                                            below. Likewise, credits can be used                    engine families from entering the market              implemented. Second, we are
                                            interchangeably between all three                       through the use of nonhandheld engine                 establishing provisions to allow the use
                                            handheld engine classes (Classes III, IV,               credits. (See § 1054.740.)                            of Phase 2 credits for a limited time
                                            and V). Because the Phase 2 exhaust                        A second exception to the provision                under specific conditions. The
                                            ABT program allowed exchange across                     restricting credit exchanges between                  following discussions describe each of
                                            all engine classes (i.e., allowing                      handheld engines and nonhandheld                      these provisions in more detail for Class
                                            exchanges between handheld engines                      engines arises because of our handling                I engines and Class II engines
                                            and nonhandheld engines),                               of engines below 80cc. Under the new                  separately.
                                            manufacturers using credits beginning                   Phase 3 program, all engines below 80cc                  For Class I engines, engine
                                            with the 2011 model year will need to                   are considered handheld engines for the               manufacturers can generate early Phase
                                            show that the credits were generated                    purposes of the emission standards.                   3 credits by producing engines with an
                                            within the allowed category of engines.                 However, a few of these engines are                   FEL at or below 10.0 g/kW-hr prior to
                                            For many companies, especially those                                                                          2012. These early Phase 3 credits will be
                                                                                                    used in nonhandheld applications.
                                            in the handheld market, this will                                                                             calculated and categorized into two
                                                                                                    Therefore, EPA will allow a
                                            potentially be straightforward since they                                                                     distinct types of credits, Transitional
                                                                                                    manufacturer to generate nonhandheld
                                            are primarily in the handheld market.                                                                         Phase 3 credits and Enduring Phase 3
                                                                                                    ABT credits from engines below 80cc
                                            For companies that have a commingled                                                                          credits. For engines certified with an
                                                                                                    for those engines a manufacturer has
                                            pool of emission credits generated by                                                                         FEL at or below 10.0 g/kW-hr, the
                                                                                                    determined are used in nonhandheld
                                            both handheld engines and                                                                                     manufacturer will earn Transitional
                                                                                                    applications. (The credits will be
                                            nonhandheld engines, this will take                                                                           Phase 3 credits. The Transitional Phase
                                                                                                    generated against the applicable
                                            more careful accounting. Because                                                                              3 credits will be calculated based on the
                                                                                                    handheld engine standard.) These
                                            manufacturers have been aware of this                                                                         difference between 10.0 g/kW-hr and
                                                                                                    nonhandheld credits could be used                     15.0 g/kW-hr. (The 15.0 g/kW-hr level is
                                            new requirement since the proposal,                     within the Class I and Class II engine                the production-weighted average of
                                            keeping records to distinguish handheld                 classes to demonstrate compliance with                Class I FEL values under the Phase 2
                                            credits and nonhandheld credits will be                 the Phase 3 exhaust standards (subject                program.) Manufacturers could use the
                                            relatively straightforward for 2006 and                 to applicable restrictions). The credits              Transitional Phase 3 credits from Class
                                            later model years.                                      generated by engines below 80cc used                  I engines in 2012 through 2014 model
                                               We are making two exceptions to the                  in handheld applications could only be                years. For engines certified with an FEL
                                            provision restricting credit exchanges                  used for other handheld engines. (See                 below 10.0 g/kW-hr, manufacturers will
                                            between handheld engines and                            § 1054.701.)                                          earn Enduring Phase 3 credits in
                                            nonhandheld engines. Currently, some                       Under an ABT program, a                            addition to the Transitional Phase 3
                                            companies that are primarily                            manufacturer establishes a ‘‘family                   credits described above. The Enduring
                                            nonhandheld engine manufacturers also                   emission limit’’ (FEL) for each                       Phase 3 credits will be calculated based
                                            sell a limited number of handheld                       participating engine family. This FEL                 on the difference between the FEL for
                                            engines. Under the Phase 2 program,                     may be above or below the standard.                   the engine family and 10.0 g/kW-hr (i.e.,
                                            these engine manufacturers can use                      The FEL becomes the enforceable                       the applicable Phase 3 standard). The
                                            credits from nonhandheld engines to                     emission limit for all the engines in that            Enduring Phase 3 credits could be used
                                            offset the higher emissions of their                    family for purposes of compliance                     once the Phase 3 standards are
                                            handheld engines. Because we are not                    testing. FELs that are established above              implemented without the model year
                                            adopting new exhaust requirements for                   the standard may not exceed an upper                  restriction noted above for Transitional
                                            handheld engines, we are addressing                     limit specified in the ABT regulations.               Phase 3 credits.
                                            this existing practice by specifying that               For nonhandheld engines we are                           Engine manufacturers may certify
                                            an engine manufacturer may use                          establishing FEL caps to prevent the sale             their Class I engines using Phase 2
                                            emission credits from their                             of very high-emitting engines. Under the              credits generated by Class I or Class II
                                            nonhandheld engines for their handheld                  new FEL caps, manufacturers will need                 engines for the first two years of the
                                            engines under certain conditions.                       to establish FELs at or below the levels              Phase 3 standards (i.e., model years
                                            Specifically, a manufacturer may use                    of the Phase 2 HC+NOX emission                        2012 and 2013) under certain
                                            credits from their nonhandheld engines                  standards of 16.1 g/kW-hr for Class I                 conditions. The manufacturer must first
                                            for their handheld engines only where                   engines and 12.1 g/kW-hr for Class II                 use all of its available transitional Phase
                                            the handheld engine family is certified                 engines. (The Phase 3 FEL cap for Class               3 credits to demonstrate compliance
                                            in 2008 and later model years without                   I engines with a displacement between                 with the Phase 3 standards, subject to
                                            any design changes from the 2007                        80 cc and 100 cc will be 40.0 g/kW-hr                 the cross-class credit restriction noted
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                                            model year and the FEL of the handheld                  since these engines were Class I–B                    below which applies prior to model year
                                            engine family does not increase above                   engines under the Phase 2 regulations                 2013. If these Transitional Phase 3
                                            the level that applied in the 2007 model                and subject to this higher level.) For                credits are sufficient to demonstrate
                                            year, unless such an increase is based                  handheld engines, where we are not                    compliance, the manufacturer may not
                                            on emission data from production                        adopting new exhaust emission                         use Phase 2 credits. If these Transitional
                                            engines. Furthermore, we are limiting                   standards, we are maintaining the FEL                 Phase 3 credits are insufficient to

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                       59081

                                            demonstrate compliance, the                             possibility of unanticipated challenges               2012, or 2013, subject to the cross-class
                                            manufacturer could use Phase 2 credits                  in reaching the Phase 3 emission levels               credit restriction noted below which
                                            to a limited degree (under the                          in some cases or selling Phase 3                      applies prior to model year 2013).
                                            conditions described below) to cover the                compliant engines early nationwide,                      The maximum number of Phase 2
                                            remaining amount of credits needed to                   without creating a situation that will                HC+NOX exhaust emission credits a
                                            demonstrate compliance. If                              allow manufacturers to substantially                  manufacturer could use for their Class II
                                            manufacturers still need credits to                     delay the introduction of Phase 3                     engines will be calculated based on the
                                            demonstrate compliance, they may then                   emission controls.                                    characteristics of Class II engines
                                            use their remaining Phase 3 credits (i.e.,                 For Class II engines, engine                       produced during the 2007, 2008, and
                                            their Enduring Phase 3 credits or any                   manufacturers could generate early                    2009 model years. For each of those
                                            other Phase 3 credits generated in 2012                 Phase 3 credits by producing engines                  years, the manufacturer will calculate a
                                            or 2013, subject to the cross-class credit              with an FEL at or below 8.0 g/kW-hr                   Phase 2 credit allowance using the ABT
                                            restriction noted below which applies                   prior to 2011. These early Phase 3                    credit equation and inserting 2.1 g/kW-
                                            prior to model year 2013).                              credits will be calculated and                        hr for the ‘‘Standard—FEL’’ term, and
                                               The maximum number of Phase 2                        categorized as Transitional Phase 3                   basing the rest of the values on the total
                                            HC+NOX exhaust emission credits that                    credits and Enduring Phase 3 credits.                 production of Class II engines, the
                                            manufacturers could use for their Class                 For engines certified with an FEL at or               production-weighted power for all Class
                                            I engines will be calculated based on the               below 8.0 g/kW-hr, the manufacturer                   II engines, and production-weighted
                                            characteristics of Class I engines                      will earn Transitional Phase 3 credits.               useful life value for all Class II engines
                                            produced during the 2007, 2008, and                     The Transitional Phase 3 credits will be              produced in each of those years.
                                            2009 model years. For each of those                     calculated based on the difference                    Manufacturers will not include their
                                            years, the manufacturer will calculate a                between 8.0 g/kW-hr and 11.0 g/kW-hr.                 wintertime engines in the calculations
                                            Phase 2 credit allowance using the ABT                  (The 11.0 g/kW-hr level is the                        unless the engines are certified to meet
                                            credit equation and inserting 1.6 g/kW-                 production-weighted average of Class II               the otherwise applicable HC+NOX
                                            hr for the ‘‘Standard—FEL’’ term, and                   FEL values under the Phase 2 program.)                emission standard. The maximum
                                            basing the rest of the values on the total              Manufacturers could use the                           number of Phase 2 HC+NOX exhaust
                                            production of Class I engines, the                      Transitional Phase 3 credits from Class               emission credits a manufacturer could
                                            production-weighted power for all Class                 II engines in 2011 through 2013 model                 use for their Class II engines (calculated
                                            I engines, and production-weighted                      years. For engines certified with an FEL              in kilograms) will be the average of the
                                            useful life value for all Class I engines               below 8.0 g/kW-hr, manufacturers will                 three values calculated for model years
                                            produced in each of those years.                        earn Enduring Phase 3 credits in                      2007, 2008, and 2009. The calculation
                                            Manufacturers will not include their                    addition to the Transitional Phase 3                  described above allows a manufacturer
                                            wintertime engines in the calculations                  credits described above. The Enduring                 to use Phase 2 credits to cover a
                                            unless the engines are certified to meet                Phase 3 credits will be calculated based              cumulative shortfall over the first three
                                            the otherwise applicable HC+NOX                         on the difference between the FEL for                 years for their Class II engines of 2.1
                                            emission standard. The maximum                          the engine family and 8.0 g/kW-hr (i.e.,              g/kW-hr above the Phase 3 standard.
                                            number of Phase 2 HC+NOX exhaust                        the applicable Phase 3 standard). The                    The Phase 2 credit allowance for Class
                                            emission credits a manufacturer could                   Enduring Phase 3 credits could be used                II engines could be used all in 2011, all
                                            use for their Class I engines (calculated               once the Phase 3 standards are                        in 2012, all in 2013, or partially in any
                                            in kilograms) will be the average of the                implemented without the model year                    or all three model year’s ABT
                                            three values calculated for model years                 restriction noted above for Transitional              compliance calculations. Because ABT
                                            2007, 2008, and 2009. The calculation                   Phase 3 credits.                                      compliance calculations must be done
                                            described above allows a manufacturer                      Engine manufacturers may certify                   annually, the manufacturer will know
                                            to use Phase 2 credits to cover a                       their Class II engines using Phase 2                  its remaining allowance based on its
                                            cumulative shortfall over the first two                 credits generated by Class I or Class II              previous calculations. For example, if a
                                            years for their Class I engines of 1.6                  engines for the first three years of the              manufacturer uses all of its Phase 2
                                            g/kW-hr above the Phase 3 standard.                     Phase 3 standards (i.e., model years                  credit allowance in 2011, it will have no
                                               The Phase 2 credit allowance for Class               2011, 2012 and 2013) under certain                    Phase 2 credits for 2012 or 2013.
                                            I engines could be used all in 2012, all                conditions. The manufacturer must first               However, if a manufacturer uses less
                                            in 2013, or partially in either or both                 use all of its transitional Phase 3 credits           than its calculated total credits based on
                                            model year’s ABT compliance                             to demonstrate compliance with the                    the 2.1 g/kW-hr limit in 2011, it will
                                            calculations. Because ABT compliance                    Phase 3 standards, subject to the cross-              have the remainder of its allowance
                                            calculations must be done annually, the                 class credit restriction noted below                  available for use in 2012 and 2013. This
                                            manufacturer will know its 2013                         which applies prior to model year 2013.               provision allows for some use of Phase
                                            remaining allowance based on its 2012                   If these Transitional credits are                     2 emission credits to address the
                                            calculation. For example, if a                          sufficient to demonstrate compliance,                 possibility of unanticipated challenges
                                            manufacturer uses all of its Phase 2                    the manufacturer may not use Phase 2                  in reaching the Phase 3 emission levels
                                            credit allowance in 2012, it will have no               credits. If these Transitional Phase 3                in some cases or selling Phase 3 engines
                                            use of Phase 2 credits for 2013.                        credits are insufficient to demonstrate               nationwide, without creating a situation
                                            Conversely, if a manufacturer doesn’t                   compliance, the manufacturer could use                that will allow manufacturers to
                                            use any Phase 2 credits in 2012, it will                Phase 2 credits to a limited degree                   substantially delay the introduction of
                                            have all of its Phase 2 credit allowance                (under the conditions described below)                Phase 3 emission controls.
                                            available for use in 2013. If a                         to cover the remaining amount of credits                 To avoid the use of credits to delay
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                                            manufacturer uses less than its                         needed to demonstrate compliance. If                  the introduction of Phase 3
                                            calculated total credits based on the 1.6               the manufacturer still needs credits to               technologies, we are also not allowing
                                            g/kW-hr limit in 2012, the remainder                    demonstrate compliance, they may then                 manufacturers to use Phase 3 credits
                                            will be available for use in 2013. This                 use their remaining Phase 3 credits (i.e.,            from Class I engines to demonstrate
                                            provision allows for limited use of                     their Enduring Phase 3 credits or any                 compliance with Class II engines in the
                                            Phase 2 emission credits to address the                 other Phase 3 credits generated in 2011,              2011 and 2012 model years. Similarly,

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                                            59082            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            we are not allowing manufacturers to                    the TPEM program. A manufacturer                      small engines, we would allow
                                            use Phase 3 credits from Class II engines               would need to track sales for all the                 manufacturers to count those engines
                                            to demonstrate compliance with Class I                  equipment manufacturers purchasing                    when calculating credits under EPA’s
                                            engines in the 2012 model year. The 1.6                 the given engine family. The engine                   program. This is consistent with how
                                            kW-hr and 2.1 g/kW-hr allowances                        manufacturer could use the resulting                  EPA allows credits to be calculated in
                                            discussed above may not be exchanged                    number of engines that were not                       other nonroad sectors, such as
                                            across engine classes or traded among                   downgraded in its calculation of ABT                  recreational vehicles.
                                            manufacturers.                                          credits for that specific engine family.
                                               We are making one additional                                                                               D. Testing Provisions
                                                                                                    Engine manufacturers may specifically
                                            adjustment related to the exhaust ABT                   direct equipment manufacturers not to                   The test procedures provide an
                                            program for engines subject to the new                  participate in the TPEM program for                   objective measurement for establishing
                                            emission standards. We are adopting a                   certain engine models, which would                    whether engines comply with emission
                                            requirement that lowering an FEL after                  allow for a more straightforward                      standards. The following sections
                                            the start of production may occur only                  accounting of the number of engines                   describe a variety of changes to the
                                            if the manufacturer has emission data                   that are downgraded under the TPEM                    current test procedures. Except as
                                            from production engines justifying the                  program.                                              identified in the following sections, we
                                            lower FEL (see § 1054.225). This                           For all emission credits generated by              are preserving the testing-related
                                            prevents manufacturers from making                      engines under the Phase 3 exhaust ABT                 regulatory provisions that currently
                                            FEL changes late in the model year to                   program, we are allowing an indefinite                apply under 40 CFR part 90 for Phase
                                            generate more emission credits (or use                  credit life. We consider these emission               2 engines. Note that there is no
                                            fewer emission credits) when there is                   credits to be part of the overall program             presumption that any previous
                                            little or no opportunity to verify                      for complying with Phase 3 standards.                 approvals, guidance, or judgments
                                            whether the revised FEL is appropriate                  Given that we may consider further                    related to alternatives, deviations, or
                                            for the engine family. This provision is                reductions beyond these standards in                  interpretations of the testing
                                            common in EPA’s emission control                        the future, we believe it will be                     requirements under the Phase 1 or
                                            programs for other engine categories.                   important to assess the ABT credit                    Phase 2 program will continue to apply;
                                            We are also requiring that any revised                  situation that exists at the time any                 any decisions on such issues will be
                                            FEL can apply only for engines                          further standards are considered.                     handled going forward on a case-by-case
                                            produced after the FEL change. This is                  Emission credit balances will be part of              basis.
                                            necessary to prevent manufacturers                      the analysis for determining the                      (1) Migrating Procedures to 40 CFR Part
                                            from recalculating emission credits in a                appropriate level and timing of new                   1065
                                            way that leaves no way of verifying that                standards, consistent with the statutory
                                            the engines produced prior to the FEL                   requirement to establish standards that                 Manufacturers have been using the
                                            change met the applicable requirements.                 represent the greatest degree of emission             procedures in 40 CFR part 90 to test
                                               As described below in Section V.E.3,                 reduction achievable, considering cost,               their engines for certification of Phase 1
                                            we are allowing equipment                               safety, lead time, and other factors. If we           and Phase 2 engines. As part of a much
                                            manufacturers to install a limited                      were to allow the use of Phase 3 credits              broader effort, we have adopted
                                            number of Class II engines, certified by                to meet future standards, we may need                 comprehensive testing specifications in
                                            engine manufacturers with a catalyst as                 to adopt emission standards at more                   40 CFR part 1065 that are intended to
                                            Phase 3 engines, into equipment                         stringent levels or with an earlier start             serve as the basis for testing all types of
                                            without the catalyst. (This is only                     date than we would absent the                         engines. The procedures in part 1065
                                            allowed when the engine is shipped                      continued (or limited) use of Phase 3                 include updated information reflecting
                                            separately from the exhaust system                      credits, depending on the level of Phase              the current state of available technology.
                                            under the provisions described in                       3 credit banks. Alternatively, we could               We are applying the procedures in part
                                            Section V.E.2.) Because engine                          adopt future standards without allowing               1065 to nonhandheld engines starting
                                            manufacturers may be generating                         the use of Phase 3 credits. The final                 with new certification testing in 2013
                                            emission credits from these engines                     requirements in this rulemaking                       and later model years as specified in 40
                                            based on the use of a catalyst, EPA is                  describe a middle path in which we                    CFR part 1054, subpart F. The
                                            concerned that engine manufacturers                     allow the use of Phase 2 credits to meet              procedures in part 1065 identify new
                                            could be earning exhaust ABT credits                    the Phase 3 standards, with provisions                types of analyzers and update a wide
                                            for engines that are sold but never have                that limit the extent and timing of using             range of testing specifications, but leave
                                            the catalyst installed. Therefore, EPA                  these credits.                                        intact the fundamental approach for
                                            believes it is appropriate to adjust such                  Finally, manufacturers may include as              measuring exhaust emissions. There is
                                            credits to account for the fact that                    part of their federal credit calculation              no need to shift to the part 1065
                                            equipment manufacturers may in many                     the sales of engines in California as long            procedures for nonhandheld engines
                                            cases legally install a non-catalyzed                   as they don’t separately account for                  before 2013. This allows manufacturers
                                            muffler on an engine that is part of a                  those emission credits under the                      time to make any necessary adjustments
                                            family whose certification depends on                   California regulations. We originally                 or upgrades in their lab equipment and
                                            the use of a catalyst. Therefore, EPA is                proposed to exclude engines sold in                   procedures. While any new certification
                                            adopting a 0.9 adjustment factor for                    California which are subject to the                   testing for nonhandheld engines will be
                                            calculating credits for engine families                 California ABR standards. However, we                 subject to the part 1065 procedures
                                            that are available under the delegated                  consider California’s current HC+NOX                  starting in model year 2013,
                                            assembly provisions and are also                        standards to be equivalent to those we                manufacturers will be allowed to
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                                            participating in the TPEM program. In                   are adopting in this rulemaking, so we                continue certifying nonhandheld
                                            addition, EPA is including an option                    would expect a widespread practice of                 engines using carryover data generated
                                            that will allow engine manufacturers to                 producing and marketing 50-state                      under the part 90 procedures.
                                            track the final configuration of the                    products. Therefore, as long as a                       We are not setting new exhaust
                                            engines to determine the actual number                  manufacturer is not generating credits                emission standards for handheld
                                            of engines that were downgraded under                   under California’s averaging program for              engines so there is no natural point in

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                       59083

                                            time for shifting to the part 1065                      the situations in which the installed                 described in 40 CFR part 90 (see
                                            procedures. We nevertheless believe                     engine governor controls engine speed.                § 1054.505). Since each of these
                                            handheld engines should also use the                    We are extending these provisions to                  adjustments may have some effect on
                                            part 1065 procedures for measuring                      testing under the new standards with a                measured emission levels, we believe it
                                            exhaust emissions. We are requiring                     few adjustments described below. For                  is appropriate to implement these
                                            manufacturers to start using the part                   engines equipped with an engine speed                 changes concurrent with the Phase 3
                                            1065 procedures in the 2013 model year                  governor, the current regulations at 40               standards. To the extent the adjustments
                                            as described above for nonhandheld                      CFR 90.409(a)(3) state:                               apply to handheld engines, we believe
                                            engines. Manufacturers will be allowed                     For Class I, Class I–B, and Class II               it is appropriate to apply the changes for
                                            to continue certifying handheld engines                 engines subject to Phase 2 standards                  new testing with 2013 and later model
                                            using carryover data generated under                    that are equipped with an engine speed                year engines for the reasons described
                                            the part 90 procedures, but any new                     governor, the governor must be used to                above for adopting the test procedures
                                            certification testing will be subject to                control engine speed during all test                  in part 1065.
                                            the part 1065 procedures starting with                  cycle modes except for Mode 1 or Mode                    First, for engines with installed
                                            the 2013 model year.                                    6, and no external throttle control may               governors we are requiring the engine
                                               We have taken several steps to                       be used that interferes with the function             speed during the idle mode to be
                                            address the concerns raised by engine                   of the engine’s governor; a controller                controlled by the governor. We believe
                                            manufacturers related to the specified                  may be used to adjust the governor                    there is no testing limitation that will
                                            test procedures in part 1065. First, we                 setting for the desired engine speed in               call for engine operation at idle to
                                            have confirmed that the calculations in                 Modes 2–5 or Modes 7–10; and during                   depart from the engine’s governed
                                            part 1065 yield the same emission                       Mode 1 or Mode 6 fixed throttle                       speed. Allowing manufacturers to
                                            results for a given set of raw data from                operation may be used to determine the                arbitrarily declare an idle speed only
                                            testing. The two calculation methods                    100 percent torque value.                             allows manufacturers to select an idle
                                            resulted in differences that were less                     In addition, the current regulations at            speed that gives them an advantage in
                                            than 1 percent for both handheld and                    40 CFR 90.410(b) state:                               achieving lower measured emission
                                            nonhandheld engines. We have                                                                                  results but not in a way that
                                                                                                       For Phase 2 Class I, I–B, and II engines
                                            identified a variety of clarifications and                                                                    corresponds to in-use emission control.
                                                                                                    equipped with an engine speed governor,
                                            adjustments that we need to make to the                 during Mode 1 or Mode 6 hold both the                 We are also aware that some production
                                            equations in § 1065.655 to ensure                       specified speed and load within ± five                engines have a user-selectable control
                                            accurate calculations for engines                       percent of point, during Modes 2–3, or                for selecting high-speed or low-speed
                                            operating with rich air-fuel mixtures.                  Modes 7–8 hold the specified load with ±              idle (commonly identified as ‘‘rabbit/
                                            Second, we have modified the cycle-                     five percent of point, during Modes 4–5 or
                                                                                                                                                          turtle’’ settings). We believe this
                                            validation criteria in § 1054.505 to more               Modes 9–10, hold the specified load within
                                                                                                    the larger range provided by ±0.27 Nm (±0.2           parameter adjustment may have a
                                            carefully reflect achievable torque
                                                                                                    lb-ft), or ± ten (10) percent of point, and           significant effect on emissions that
                                            control for small engines. The new
                                                                                                    during the idle mode hold the specified               should be captured in the certification
                                            criteria are based on a combination of
                                                                                                    speed within ± ten percent of the                     test procedure. As a result, we are
                                            specifications for continuous
                                                                                                    manufacturer’s specified idle engine speed            requiring that manufacturers conduct
                                            measurements and mean values,                           (see Table 1 in Appendix A of this subpart            testing with user-selectable controls set
                                            including specification of absolute                     for a description of test Modes).
                                            thresholds where a percentage approach                                                                        to keep the engine operating at low-
                                            would not work for very small torque                       Manufacturers have raised questions                speed idle if any production engines in
                                            values. Third, we are adjusting the                     about the interpretation of these                     the engine family have such an option.
                                            fueling instructions in part 1065 to                    provisions. Our intent is that the current            For engines with no installed governor,
                                            allow for fuel-oil mixtures with two-                   requirements specify that testing be                  part 1065 specifies that the engine
                                            stroke engines.                                         conducted as follows:                                 should operate at the idle speed
                                               We also acknowledge that handheld                       • Full-load testing occurs at wide-                declared by the manufacturer.
                                            engines that depend on special fixtures                 open throttle to maintain engines at                     Second, we are allowing an option in
                                            for proper testing should be tested                     rated speed, which is defined as the                  which manufacturers will test their
                                            under the provisions of § 1065.10(c) for                speed at which the engine’s maximum                   nonhandheld engines using a ramped-
                                            special test procedures. This would                     power occurs (as declared by the                      modal version of the specified duty
                                            require that manufacturers describe                     manufacturer).                                        cycle. We expect this testing to be
                                            their test fixtures and make them                          • Idle testing occurs at the                       equivalent to the modal testing
                                            available upon request. Further effort                  manufacturer’s specified idle speed                   described above but it will have
                                            may be required to incorporate more                     with a maximum load of five percent of                advantages for streamlining test efforts
                                            specific requirements or specifications                 maximum torque. The regulation allows                 by allowing for a single result for the
                                            related to these test fixtures. We expect               adjustment to control speeds that are                 full cycle instead of relying on a
                                            to cooperate with government agencies                   different than will be maintained by the              calculation from separate modal results.
                                            from California and from other countries                installed governor.                                   Under the new requirement we will
                                            in an effort to harmonize Small SI test                    • The installed governor must be                   allow manufacturers the option to select
                                            procedures, for part 1065 procedures                    used to control engine speed for testing              this type of testing. Manufacturers must
                                            generally and for these special test                    at all modes with torque values between               use the same test method for
                                            procedures in particular.                               idle and full-load modes. The regulation              production-line testing that they use for
                                                                                                    allows adjustments for nominal speed                  certifying the engine family.
                                            (2) Duty Cycle
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                                                                                                    settings that are different than will be              Manufacturers may include results from
                                              The regulations under part 90                         maintained by the installed governor                  both types of testing in their application
                                            currently specify duty cycles for testing               without modification.                                 for certification, in which case they
                                            engines for exhaust emissions. The                         We are adopting the Phase 3                        could use either method for production-
                                            current requirements specify how to                     standards with adjustments to the                     line testing. EPA’s confirmatory testing
                                            control speeds and loads and describe                   regulatory requirements currently                     will involve the same type of testing

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                                            59084            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            performed by the manufacturers for                      same nominal speed used for the full-                 EPA’s test fuel), we understand that
                                            certification.                                          power mode, with a tolerance limiting                 some engine manufacturers will have
                                               Third, the part 90 regulations                       the variation in engine speed at each                 emission data from engines that meet
                                            currently specify two duty cycles for                   mode. Alternatively, testing may be                   EPA’s Phase 3 standards based on
                                            nonhandheld engines: (1) Testing at                     done by letting the installed governor                testing to meet California’s Tier 3 Small
                                            rated speed; and (2) testing at 85 percent              control engine speed, in which case                   Off-Road Engine requirements for 2007
                                            of rated speed. The regulations direct                  only the torque value will need to be                 and later model years. In some cases the
                                            manufacturers simply to select the most                 controlled within an established range.               test data will be based on California’s
                                            appropriate cycle and declare the rated                 Any EPA testing will be done only with                oxygenated test fuel, although
                                            speed for their engines. We are making                  installed governors controlling engine                manufacturers have the option to certify
                                            this more objective by stating that rated               speed in the standard configuration,                  using a test fuel such as that specified
                                            speed is 3,600 rpm and intermediate                     regardless of the method used by                      by EPA in 40 CFR part 90. To allow for
                                            speed is 3,060 rpm, unless the                          manufacturers for their own testing.                  a quicker transition to the new EPA
                                            manufacturer demonstrates that a                        Any such engine with test results that                standards, we will allow for use of this
                                            different speed better represents the in-               exceed applicable emission standards                  pre-existing exhaust emission test data
                                            use operation for their engines. This is                would be considered to fail, without                  (based on California’s oxygenated test
                                            consistent with the most common in-use                  regard to emission results that might be              fuel) for EPA certification purposes
                                            settings and most manufacturers’                        different with testing in which the                   through the 2012 model year.
                                            current practice.                                       governor is adjusted to target a given                Manufacturers could also use the
                                               In addition, we are adding regulatory                nominal speed.                                        California ARB test fuel for their PLT
                                            provisions to clarify how nonhandheld                      A different duty cycle applies to                  testing, if they based their certification
                                            engines are operated to follow the                      handheld engines, which are generally                 on that fuel. The use of the California
                                            prescribed duty cycle. As described in                  not equipped with governors to control                ARB data would be subject to the
                                            part 90, we are requiring that the                      engine speed. The current regulations                 provisions for carryover data for
                                            engines operate ungoverned at wide-                     allow manufacturers to name their                     demonstrating compliance with the
                                            open throttle for the full-power mode.                  operating speed for testing at each of the            standards in effect. (The carryover
                                            This test mode is used to denormalize                   test modes. However, we are concerned                 provisions for Phase 3 are specified in
                                            the rest of the duty cycle. This operation              that this approach allows manufacturers               § 1054.235.) While we will allow use of
                                            is intentionally not representative of in-              too much discretion for selecting a rated             California ARB data for certification
                                            use operation, but disabling the                        speed for high-load testing. We are                   through the 2012 model year, we will
                                            governor allows for more uniform                        revising this approach to specify that                use our test fuel without oxygenates for
                                            testing that is not dependent on the                    manufacturers must select a speed that                all confirmatory testing we perform for
                                            various governing strategies that                       best represents in-use operation for the              exhaust emissions. We are limiting the
                                            manufacturers might use. To avoid a                     engine family if the in-use applications              timeframe for such a provision because
                                            situation where engines are designed to                 involve operation centered on a given                 we ultimately want the exhaust
                                            control emissions over the test cycle,                  nominal speed (±350 rpm). Engine                      emission test results to be performed
                                            with less effective controls under                      manufacturers generally also make their               using the EPA specified test fuel.
                                            similar modes of operation that engines                 own equipment, so this can often be                      In the proposal we noted our concerns
                                            experience in use, we are adding a                      established for engines in an engine                  about testing with oxygenated fuels
                                            requirement for manufacturers to                        family. For engine families without such              since this could affect an engine’s air-
                                            provide an explanation in the                           a predominant operating speed, we                     fuel ratio, which in turn could affect the
                                            application for certification if air-fuel               require that engine manufacturers test                engine’s combustion and emission
                                            ratios are significantly different for                  their engines within 350 rpm of the                   characteristics. Because of the relatively
                                            governed and ungoverned operation at                    speed at which the engine produces                    recent dramatic increase in the use of
                                            wide-open throttle, especially for fuel-                maximum power. Some engine families                   ethanol (another oxygenate) in the broad
                                            injected engines. Manufacturers would                   may have a dominant engine speed, but                 motor gasoline pool, we have
                                            need to explain why this emission                       also include a variety of applications                reexamined our position (as discussed
                                            control strategy is not a defeat device. If             that operate at different in-use speeds.              below) and are adopting provisions that
                                            we test engines governed and                            We specify for these cases that engine                will allow manufacturers to use a 10
                                            ungoverned at wide open throttle, we                    manufacturers must test at both of the                percent ethanol blend for certification
                                            would expect to see little or no                        test speeds identified above, in which                testing for exhaust emissions from
                                            difference in emission rates. If we                     case EPA testing might also involve                   nonhandheld engines, as an alternative
                                            would observe higher emission rates                     emission measurements using either (or                to the standard test fuel. This option to
                                            with governed engine operation,                         both) test speeds. We are further                     use a 10 percent ethanol blend will
                                            manufacturers would again need to                       requiring manufacturers to describe in                begin with the implementation date of
                                            justify why this discrepancy is not a                   their application for certification how               the Phase 3 exhaust standards. The use
                                            defeat device. Engines with                             they select the value for rated speed.                of the ethanol blend would apply to
                                            conventional carburetors offer a limited                                                                      production-line testing as well if the
                                            ability to manipulate air-fuel ratios at                (3) Test Fuel
                                                                                                                                                          manufacturer based their certification
                                            different operating points, so in these                   We are requiring Phase 3 exhaust                    on the 10 percent ethanol blend. We are
                                            cases manufacturers would simply state                  emission testing with a standard test                 also committing to using a 10 percent
                                            that air-fuel ratios do not vary                        fuel consistent with the existing                     ethanol blend for all confirmatory
                                            significantly at governed and                           requirements under 40 CFR part 90 (see                testing we perform for exhaust
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                                            ungoverned points of full-load                          40 CFR part 1065, subpart H). The                     emissions under the provisions
                                            operation.                                              existing regulatory specifications allow              described below.
                                               Testing at other modes occurs with                   for no oxygenates in the test fuel.                      Ethanol has been blended into in-use
                                            the governor controlling engine speed.                  Because California ARB specifies a test               gasoline for many years, and until as
                                            Before each test mode, manufacturers                    fuel which contains the oxygenate                     recently as 2005, was used in less than
                                            may adjust the governor to target the                   MTBE (but also allows for the use of                  one-third of the national gasoline pool.

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                        59085

                                            However, ethanol use has been                              For handheld engines, where we do                  deviate from the specified test
                                            increasing in recent years and, under                   not have sufficient data on the impact                procedures could potentially hinder our
                                            provisions of the Energy Independence                   of ethanol blends on emissions, we are                ability to determine whether the engines
                                            and Security Act of 2007, ethanol will                  adopting a slightly different approach.               would meet the standards when tested
                                            be required in significantly greater                    Manufacturers will have the option to                 according to the specified procedures.
                                            quantities. We project that potentially                 use a 10 percent ethanol blend for                    Nevertheless, it is possible to overcome
                                            80 percent of the national gasoline pool                certification beginning with the 2010                 this concern based on the expected
                                            will contain ethanol by 2010, making                    model year. The option to use a 10                    impact of the deviation on measured
                                            ethanol blends up to 10 percent the de                  percent ethanol blend would apply to                  emissions and on the manufacturer’s
                                            facto in-use fuel. As ethanol blends                    PLT testing as well if the manufacturer               compliance margin (that is, the degree
                                            become the primary in-use fuel, we                      based their certification on the 10                   to which the measured certification
                                            believe it makes sense for manufacturers                percent ethanol blend. While we will                  emissions are below the standard). For
                                            to optimize their engine designs with                   allow use of a 10 percent ethanol blend               example, we would conclude that a
                                            regard to emissions, performance, and                   for certification, we expect to use our               deviation that was expected to change
                                            durability on such a fuel. We also                      test fuel without oxygenates for all                  measured emission rates by less than 0.1
                                            believe manufacturers need to know                      confirmatory testing for exhaust                      g/kW-hr would clearly not affect a
                                            that any confirmatory testing we do on                  emissions. Therefore, an engine                       manufacturer’s ‘‘ability to demonstrate
                                            their engines will be performed on the                  manufacturer will want to consider the                compliance with the emission
                                            same fuel the manufacturer used for                     impacts of ethanol on emissions in                    standards’’ if the certified emission level
                                            certification since the fuel can impact                 evaluating the compliance margin for                  was 1.0 g/kW-hr below the standard (or
                                            the ability to demonstrate compliance                   the standard, or in setting the FEL for               below the Family Emission Limit). On
                                            with the emission standards.                            the engine family if it is participating in           the other hand, a deviation that was
                                               Limited data of nonhandheld engine                   the ABT program. We could decide at                   expected to change measured emission
                                            emissions tested on 10 percent ethanol                  our own discretion to do exhaust                      rates by 0.1 to 0.5 g/kW-hr would affect
                                            blends suggests the HC emissions will                   emissions testing using a 10 percent                  a manufacturer’s ‘‘ability to demonstrate
                                            decrease and NOX emissions will                         ethanol blend if the manufacturer                     compliance with the emission
                                            increase compared to emissions from                     certified on that fuel. It should be noted            standards’’ if the compliance margin
                                            the same engine operated on current                     that both EPA and the California ARB                  was only 0.5 g/kW-hr. Another way to
                                            certification fuel without oxygenates.                  are currently running test programs to                show that a deviation will not affect a
                                            Depending on the relative HC and NOX                    assess the emission impacts of a 10                   manufacturer’s ‘‘ability to demonstrate
                                            levels of the engines, these offsetting                 percent ethanol blend on a range of                   compliance with the emission
                                            effects can result in small increases or                Small SI engines, including handheld                  standards’’ is to show through
                                            decreases in total HC+NOX emission                      engines. Based on the results of that test            engineering analysis that a deviation
                                            levels. Because the impact on HC+NOX                    program, we may want to consider                      will actually cause measured emissions
                                            emissions can vary slightly from engine                 changes to the provisions allowing the                to increase relative to the specified
                                            family to engine family, we do not want                 use of a 10 percent ethanol blend for                 procedures.
                                            manufacturers varying their certification               certification and PLT testing for                       It should be noted that this is the first
                                            fuel from one family to another to gain                 handheld engines. If the results of the               time EPA regulations specify the use of
                                            advantage with regard to emissions                      handheld engine testing show that                     an ethanol test fuel for exhaust
                                            certification.                                          emissions are comparable on both fuels,               emissions testing for certification
                                               Therefore, if a manufacturer wishes to               we would expect to revise the                         purposes. It is likely that EPA will
                                            use a 10 percent ethanol blend for                      provisions for handheld engines and                   consider similar test fuel changes in the
                                            certification, they should use the 10                   take a similar approach to that described             future for other vehicle and engine
                                            percent ethanol blend for all their Phase               above for nonhandheld engines. (See                   categories including those addressed in
                                            3 nonhandheld engines for a given                       § 1054.501.)                                          this final rule. As part of those
                                            engine class by the third year of the                      The test fuel specifications for the 10            deliberations, it is possible that EPA
                                            Phase 3 standard (i.e., by the 2014                     percent ethanol blend are based on                    could decide that the test fuel
                                            model year for Class I engines and by                   using the current gasoline test fuel and              specifications for the ethanol blend
                                            the 2013 model year for Class II                        adding fuel-grade ethanol until the                   should be different than those adopted
                                            engines). During the transition period,                 blended fuel contains 10 percent                      in this rule. Should that occur, EPA
                                            we will perform any confirmatory                        ethanol by volume. In addition, we                    would need to consider whether
                                            testing on the 10 percent ethanol blend                 recognize that in some cases using fuel-              changes to the test fuel specifications
                                            if that is the fuel used by the                         grade ethanol may be less practical than              adopted in this rule for the 10 percent
                                            manufacturer for certification. At the                  using other grades and so we will allow               ethanol blend are appropriate for Small
                                            end of the transition period, we will                   the use of other grades, provided they                SI engine testing.
                                            perform any confirmatory testing on the                 do not affect a manufacturer’s ability to             E. Certification and Compliance
                                            10 percent ethanol blend if that is the                 demonstrate compliance with the                       Provisions for Small SI Engines and
                                            fuel used by the manufacturer for                       emission standards. To understand this                Equipment
                                            certification, but only if the                          allowance, it is helpful to remember that
                                            manufacturer has certified all their                    one of the main purposes of certification             (1) Deterioration Factors
                                            nonhandheld engines in that engine                      is for the manufacturer to use test data                As part of the certification process,
                                            class on the 10 percent ethanol blend.                  to show that the engines produced will                manufacturers generate deterioration
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                                            If the manufacturer has not certified all               conform to the regulations. Implicit in               factors to demonstrate that their engines
                                            its engines in a given engine class on the              this is the concept that if EPA were to               meet emission standards over the full
                                            10 percent ethanol blend, we may                        test an engine in the family according to             useful life. We are adopting some
                                            decide to test the engine on our current                the specified procedures, its measured                changes from the procedures currently
                                            test fuel without oxygenates. (See                      emissions would be below the                          included in part 90 (see § 1054.240 and
                                            § 1054.145 and § 1054.501.)                             standards. Allowing a manufacturer to                 § 1054.245). Much of the basis for these

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                                            59086            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            changes comes from the experience                       purpose of demonstrating the durability               have adopted such provisions for heavy-
                                            gained in testing many different engines                of emission controls. The durability                  duty highway engines and for other
                                            in preparation for this final rule. First,              cycles approved by California ARB vary                nonroad engines in 40 CFR 85.1713 and
                                            we are discontinuing bench aging of                     from a 30-second cycle for chainsaws to               40 CFR 1068.260, respectively. These
                                            emission components. Testing has                        a 20-minute cycle for blowers, with 85                provisions generally require that engine
                                            shown that operating and testing the                    percent of the time operated at wide                  manufacturers establish a contractual
                                            complete engine is necessary to get                     open throttle and 15 percent of the time              arrangement with equipment
                                            accurate deterioration factors. Second,                 operated at idle. Engine manufacturers                manufacturers and take additional steps
                                            we are allowing assigned deterioration                  can run the durability cycles repeatedly              to ensure that engines are in their
                                            factors for a limited number of small-                  until they accumulate the hours of                    certified configuration before reaching
                                            volume nonhandheld engine families.                     operation equivalent to the useful life               the ultimate purchaser.
                                            Manufacturers could use assigned                        for the engine family. Our current                       We are applying delegated-assembly
                                            deterioration factors for multiple small-               regulations state that ‘‘service                      provisions for nonhandheld engines that
                                            volume nonhandheld engine families as                   accumulation is to be performed in a                  are similar to those adopted for heavy-
                                            long as the total production for all the                manner using good judgment to ensure                  duty highway engines. In fact, we have
                                            nonhandheld engine families for which                   that emissions are representative of                  modified the proposed requirements
                                            the manufacturer is using assigned                      production engines.’’ While we are not                and the requirements that apply to
                                            deterioration factors is estimated at the               changing the regulatory language                      heavy-duty highway engines (and to
                                            time of certification to be no more than                regarding service accumulation, the                   other nonroad engines) such that a
                                            10,000 units per year. Third, we are                    California ARB-approved durability                    single set of requirements in part 1068
                                            allowing assigned deterioration factors                 cycles are appropriate and acceptable to              will simultaneously apply to all these
                                            for all engines produced by small-                      EPA for accumulating hours on                         engine categories. This combined
                                            volume nonhandheld engine                               handheld engines for demonstrating the                approach incorporates substantial
                                            manufacturers.                                          durability of emission controls.                      elements of the program we proposed
                                               For the HC+NOX standard, we are                                                                            for Small SI engines.
                                            specifying that manufacturers use a                     (2) Delegated Final Assembly                             This approach generally requires that
                                            single deterioration factor for the sum of                 The current practice of attaching                  engine manufacturers apply for
                                            HC and NOX emissions. However, if                       exhaust systems to engines varies. Class              certification in the normal way,
                                            manufacturers get approval to establish                 I engines are typically designed and                  identifying all the engine parts that
                                            a deterioration factor on an engine that                produced by the engine manufacturer                   make up the engine configurations
                                            is tested with service accumulation                     with complete emission control                        covered by the certification. Equipment
                                            representing less than the full useful life             systems. Equipment manufacturers                      manufacturers will be able to work with
                                            for any reason, we will require separate                generally buy these engines and install               muffler manufacturers to get mufflers
                                            deterioration factors for HC and NOX                    them in their equipment, adjusting                    with installed catalysts as specified in
                                            emissions. The advantage of a combined                  equipment designs if necessary to                     the engine manufacturer’s application
                                            deterioration factor is that it can account             accommodate the mufflers and the rest                 for certification. If equipment
                                            for an improvement in emission levels                   of the exhaust system from the engine                 manufacturers need a muffler or catalyst
                                            for a given pollutant with aging.                       manufacturer.                                         that is not covered by the engine
                                            However, for engines that have service                     Engine manufacturers generally                     manufacturer’s certification, the engine
                                            accumulation representing less than the                 produce Class II engines without                      manufacturer will need to amend the
                                            full useful life, we believe it is not                  exhaust systems, relying instead on                   application for certification. This may
                                            appropriate to extrapolate measured                     installation instructions to ensure that              require new testing if the data from the
                                            values indicating that emission levels                  equipment manufacturers get mufflers                  original emission-data engine are not
                                            for a particular pollutant will decrease.               that fall within a specified range of                 appropriate for showing that the new
                                            This is the same approach we adopted                    backpressures that is appropriate for a               configuration will meet emission
                                            for recreational vehicles.                              given engine model. Equipment                         standards, as described in § 1054.225.
                                               EPA is not establishing the values for               manufacturers are free to work with                   (Alternatively, the equipment
                                            the assigned deterioration factors for                  muffler manufacturers to design                       manufacturer may take on the
                                            small-volume nonhandheld engine                         mufflers that fit into the space available            responsibility for certifying the new
                                            manufacturers in this final rule. In an                 for a given equipment model, paying                   configuration, as described in
                                            effort to develop deterioration factors                 attention to the need to stay within the              § 1054.612.) Engine manufacturers will
                                            that are appropriate for Small SI                       design specifications from the engine                 also identify in the application for
                                            engines, we plan to evaluate                            manufacturers. A similar situation                    certification their plans to sell engines
                                            certification data from Phase 3 engines                 applies for air filters, where equipment              without emission-related components.
                                            certified early with EPA and from                       manufacturers in some cases work with                 We are adopting several provisions to
                                            engines certified under California ARB’s                component manufacturers to use air                    ensure that engines will eventually be in
                                            Tier 3 standards (which began in 2007                   filters that are tailored to the individual           their certified configuration. For
                                            and 2008). Because we are not                           equipment model while staying within                  example, engine manufacturers will
                                            promulgating new exhaust standards for                  the design specifications defined by the              establish contracts with affected
                                            handheld engines, the assigned                          engine manufacturer.                                  equipment manufacturers, include
                                            deterioration factor provisions adopted                    The existing regulations require that              installation instructions to make clear
                                            for Phase 2 handheld engines are being                  certified engines be in their certified               how engine assembly should be
                                            retained.                                               configuration when they are introduced                completed, keep records of the number
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                                               Although we are not establishing new                 into commerce. We therefore need                      of engines produced under these
                                            exhaust standards for handheld engines,                 special provisions to address the                     provisions, and obtain annual affidavits
                                            handheld engine manufacturers noted                     possibility that engines will need to be              from affected equipment manufacturers
                                            that California ARB has approved                        produced and shipped without exhaust                  to confirm that they are installing the
                                            certain durability cycles for                           systems or air intake systems that are                proper emission-related components on
                                            accumulating hours on engines for the                   part of the certified configuration. We               the engines and that they have ordered

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                      59087

                                            the number of components that                           manufacturers to ask us to allow this                 label (or ‘‘DEL ASSY’’ where limited
                                            corresponds to the number of engines                    only in unusual circumstances when the                space requires an abbreviation).
                                            involved.                                               standard approach would be very                          In addition, engine manufacturers
                                               While the delegated-assembly                         impractical. Also, depending on the                   will need to perform or arrange for
                                            provisions are designed for direct                      broader experience with this provision                audits to verify that equipment
                                            shipment of engines from engine                         before 2015, we may consider changing                 manufacturers are properly assembling
                                            manufacturers to equipment                              the regulation to allow this to continue              engines. Engine manufacturers may rely
                                            manufacturers, we are aware that                        without our specific approval, for Small              on third-party agents to perform
                                            distributors play an important role in                  SI engines or for all types of engines. If            auditing functions. Since the purpose of
                                            providing engines to large numbers of                   we find that there are substantial                    the audit is to verify that equipment
                                            equipment manufacturers. We are                         problems in implementing this                         manufacturers are properly assembling
                                            requiring that these provisions apply to                provision, we may also consider                       products, they may not perform audits
                                            distributors in one of two ways. First,                 removing the allowance to continue                    on behalf of engine manufacturers. We
                                            engine manufacturers may have an                        using distributors this way for delegated             are requiring that audits involve at a
                                            especially close working relationship                   assembly past 2014.                                   minimum reviewing the equipment
                                            with primary distributors. In such a                       Second, other distributors may                     manufacturer’s production records and
                                            case, the engine manufacturer can                       receive shipment of engines without                   procedures, inspecting the equipment
                                            establish a contractual arrangement                     exhaust systems, but they will add any                manufacturer’s production operations,
                                                                                                    aftertreatment components before                      and inspecting the final assembled
                                            allowing the distributor to act as the
                                                                                                    sending the engines on to equipment                   products. Inspection of final assembled
                                            engine manufacturer’s agent for all
                                                                                                    manufacturers. Engine manufacturers                   products may occur at any point in the
                                            matters related to compliance with the
                                                                                                    will treat these distributors as                      product distribution system. For
                                            delegated-assembly provisions. This
                                                                                                    equipment manufacturers for the                       example, products may be inspected at
                                            allows the distributor to make
                                                                                                    purposes of delegated assembly.                       the equipment manufacturer’s assembly
                                            arrangements with equipment
                                                                                                    Equipment manufacturers buying                        or storage facilities, at regional
                                            manufacturers to address design needs
                                                                                                    engines from such a distributor will not              distribution centers, or at retail
                                            and perform oversight functions. We
                                                                                                    have the option of separately obtaining               locations. The audit must also include
                                            will hold the engine manufacturer
                                                                                                    mufflers from muffler manufacturers.                  confirmation that the number of
                                            directly responsible if the distributor                 However, we would expect distributors                 aftertreatment devices shipped was
                                            fails to meet the regulatory obligations                to cooperate with small equipment                     sufficient for the number of engines
                                            that will otherwise apply to the engine                 manufacturers to work out any                         involved. Engine manufacturers would
                                            manufacturer. However, starting in                      necessary arrangements to specify and                 keep records of the audit results and
                                            2015, we are allowing this approach                     design their components and                           make these records available to us upon
                                            only with our specific approval for                     equipment. This second situation                      request. These auditing specifications
                                            individual manufacturers and                            involves a more straightforward                       represent a minimum level of oversight.
                                            distributors. While this arrangement is                 compliance scenario so this provision                 In certain circumstances we may expect
                                            necessary to facilitate making engines                  does not expire. In both of these                     engine manufacturers to take additional
                                            available under the Transition Program                  scenarios, the engine manufacturer                    steps to ensure that engines are
                                            for Equipment Manufacturers, we are                     continues to be responsible for the in-               assembled and installed in their
                                            concerned that it will be difficult for                 use compliance of all their engines.                  certified configuration. For example,
                                            EPA and for manufacturers to properly                      Engine manufacturers will need to                  equipment manufacturers with very low
                                            ensure that all engines are built up to a               affix a label to the engine to clarify that           order volumes, an unclear history of
                                            certified configuration when assembly                   it needs certain emission-related                     compliance, or other characteristics that
                                            responsibilities are so far removed from                components before it is in its certified              will cause some concern may prompt us
                                            the engine manufacturer. This is                        configuration. This labeling information              to require a more extensive audit to
                                            underscored by a recent finding that an                 is important for alerting assembly                    ensure effective oversight in confirming
                                            equipment manufacturer was                              personnel to select mufflers with                     that engines are always built properly.
                                            intentionally not following an engine                   installed catalysts; the label will also              Engine manufacturers must describe in
                                            manufacturer’s instructions when                        give in-house inspectors or others with               the application for certification their
                                            installing Small SI engines such that the               responsibility for quality control a tool             plan for taking steps to ensure that all
                                            final installation involved an engine                   for confirming that all engines have                  engines will be in their certified
                                            that was not in a certified configuration.              been properly assembled and installed.                configuration when installed by the
                                            In the years before 2015, we expect that                Given the large numbers of engine and                 equipment manufacturer. EPA approval
                                            EPA and manufacturers will learn a lot                  equipment models and the                              of a manufacturer’s plan for delegated
                                            about delegated assembly, including the                 interchangeability of mufflers with and               assembly will be handled as part of the
                                            extent to which there are cases in which                without catalysts, we believe proper                  overall certification process.
                                            engines are improperly assembled,                       labeling will reduce the possibility that                We are requiring that engine
                                            whether those problems represent                        engines will be misbuilt. This labeling               manufacturers annually audit twelve
                                            intentional violations or mistakes as                   can be done with either of two                        equipment manufacturers, or fewer if
                                            part of a good-faith effort to meet                     approaches. First, a temporary label may              they are able to audit all participating
                                            applicable requirements. We will be                     be applied such that it could not be                  equipment manufacturers on average
                                            prepared to judge individual requests                   removed without a deliberate action on                once every four years. These audits will
                                            based on the experience gained under                    the part of the equipment manufacturer.               be divided over different equipment
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                                            the initial years of the Phase 3                        We believe it is not difficult to create a            manufacturers based on the number of
                                            standards. However, given the                           label that will stay on the engine until              engines sold to each equipment
                                            challenges associated with engine                       it is deliberately removed. Second,                   manufacturer. We specify that these
                                            manufacturers allowing distributors to                  manufacturers may add the words                       auditing rates are reduced to a
                                            act as their agents with respect to                     ‘‘delegated assembly’’ to the engine’s                maximum of four equipment
                                            delegated assembly, we expect                           permanent emission control information                manufacturers per year starting in 2015.

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                                            59088            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            In 2019 and later, manufacturers would                  manufacturer until the engine                         records showing how they randomly
                                            continue to perform a maximum of four                   manufacturer has taken sufficient steps               selected catalysts.
                                            audits annually, but we specify that                    to remedy the problem.                                  See Section 2.8 of the Summary and
                                            audits may be divided evenly to cover                      We are aware that the new approach                 Analysis of Comments for further
                                            all equipment manufacturers over a ten-                 of allowing equipment manufacturers to                discussion of issues related to delegated
                                            year period.                                            make their own arrangements to order                  assembly.
                                               We are not adopting the proposed                     mufflers results in a situation in which
                                                                                                                                                          (3) Transition Program for Equipment
                                            requirement for engine manufacturers to                 the equipment manufacturer must
                                            establish an alphanumeric designation                   spend time and money to fulfill their
                                            to identify each unique catalyst design                 responsibilities under the regulations.                  Given the level of the new Phase 3
                                            and instruct equipment manufacturers                    This introduces a financial incentive to              exhaust emission standards for Class II
                                            to stamp this code on the external                      install mufflers with inferior catalysts,             engines, we believe there may be
                                            surface of the exhaust system. However,                 or to omit the catalyst altogether. To                situations where the use of a catalyzed
                                            manufacturers may choose to do this                     address this concern, we are requiring                muffler could require equipment
                                            voluntarily as a means of more readily                  that engine manufacturers get written                 manufacturers to modify their
                                            assessing whether engines have been                     confirmation from each equipment                      equipment. We are therefore
                                            properly assembled.                                     manufacturer before an initial shipment               establishing a set of provisions to
                                               We are requiring that all the same                   of engines for a given engine model.                  provide equipment manufacturers with
                                            provisions apply for separate shipment                  This confirmation will document the                   reasonable lead time for transitioning to
                                            related to air filters if they are part of an           equipment manufacturer’s                              the new standards. These provisions are
                                            engine’s certified configuration, except                understanding that they are using the                 similar to the program we adopted for
                                            for the auditing. However, this does not                appropriate aftertreatment components.                nonroad diesel engines (69 FR 38958,
                                            apply if manufacturers identify intake                  The written confirmation will be due                  June 29, 2004).
                                            systems, including air filters, by simply               within 30 days after shipping the                        Equipment manufacturers will not be
                                            instructing equipment manufacturers to                  engines and will be required before                   obligated to use any of these provisions,
                                            maintain the pressure drop within a                     shipping any additional engines from                  but all equipment manufacturers that
                                            certain range. This is typical of the way               that engine family to that equipment                  produce Class II equipment are eligible
                                            many exhaust systems are handled                        manufacturer.                                         to do so. We are also requiring that all
                                            today. We will require auditing related                    The shipping confirmation included                 companies under the control of a
                                            to air filters that are specifically                    in the rule for heavy-duty highway                    common entity will be considered
                                            identified in the application for                       engines is a very substantial provision               together for the purposes of applying
                                            certification only if engine                            to address the fact that vehicle                      these allowances. Manufacturers will be
                                            manufacturers are already performing                    manufacturers will gain a competitive                 eligible for the allowances described
                                            audits related to catalysts. We believe                 advantage by producing noncompliant                   below only if they have primary
                                            there is much less incentive or potential               products, and that engines in commerce                responsibility for designing and
                                            for problems with equipment                             will be labeled as if they were fully                 manufacturing equipment, and if their
                                            manufacturers producing engines with                    compliant even though they are not yet                manufacturing procedures include
                                            noncompliant air filters so we believe a                in their certified configuration. This is             installing engines in the equipment.
                                            separate auditing requirement for air                   especially problematic when a muffler                 (a) General Provisions
                                            filters is unnecessary.                                 with no catalyst can easily be installed
                                               The final regulation specifies that the              and can perform without indicating a                     Under the final rule, beginning in the
                                            exemption expires when the equipment                    problem. To address this concern we are               2011 model year and lasting through the
                                            manufacturer takes possession of the                    requiring that equipment manufacturers                2014 model year, each equipment
                                            engine and the engine reaches the point                 include in their annual affidavits an                 manufacturer may install Class II
                                            of final equipment assembly. The point                  accounting for the number of                          engines not certified to the Phase 3
                                            of final equipment assembly for                         aftertreatment components they have                   emission standards in a limited number
                                            purposes of delegated assembly for                      ordered relative to the number of                     of equipment applications produced for
                                            aftertreatment components is the point                  engines shipped without the catalysts                 the U.S. market (see § 1054.625). We
                                            at which the equipment manufacturer                     that the mufflers will otherwise require.             refer to these here as ‘‘flex engines.’’
                                            attaches a muffler to the engine. Engines                  Production-line testing normally                   These flex engines will need to meet the
                                            observed in production or inventory                     involves building production engines                  Phase 2 standards. The maximum
                                            assembled with improper mufflers will                   using normal assembly procedures. For                 number of ‘‘allowances’’ each
                                            be considered to have been built                        engines shipped without catalysts under               manufacturer can use are based on 30
                                            contrary to the engine manufacturer’s                   the delegated-assembly provisions, it is              percent of an average year’s production
                                            installation instructions. Catalysts are                not normally possible to do this at the               of Class II equipment. The number of
                                            invariably designed as part of the                      engine manufacturer’s facility, where                 allowances is calculated by determining
                                            muffler, so no reason exists for                        such testing will normally occur. To                  the average annual U.S.-directed
                                            installing a different muffler once a                   address this, we are specifying that                  production of equipment using Class II
                                            given muffler has been installed using                  engine manufacturers must arrange to                  engines produced from January 1, 2007
                                            normal production procedures. If                        get a randomly selected catalyst that                 through December 31, 2009. Thirty
                                            equipment manufacturers sell                            will be used with the engine. The                     percent of this average annual
                                            equipment without following these                       catalyst must come from any point in                  production level is the total number of
                                            instructions, they will be considered in                the normal distribution from the                      allowances an equipment manufacturer
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                                            violation of the prohibited acts i.e.,                  aftertreatment component manufacturer                 may use under this transition program
                                            selling uncertified engines). If there is a             to the equipment manufacturer. The                    over four years. Manufacturers can use
                                            problem with any given equipment                        catalyst may come from the engine                     these allowances for their Class II
                                            manufacturer, we will disallow                          manufacturer’s own inventory as long as               equipment over four model years from
                                            continued use of the delegated-assembly                 it is randomly procured. Engine                       2011 through 2014, with the usage
                                            provisions for that equipment                           manufacturers are required to keep                    spread over these model years as

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                       59089

                                            determined by the equipment                             (b) Coordination Between Engine and                   label that they are flex engines. In
                                            manufacturer. Equipment produced                        Equipment Manufacturers                               addition, equipment manufacturers are
                                            under these provisions can use engines                     We are establishing two separate                   required to apply an Equipment
                                            that meet the Phase 2 emission                          paths for complying with administrative               Flexibility Label to the engine or piece
                                            standards instead of the Phase 3                        requirements related to the new                       of equipment that identifies the
                                            standards. If an equipment                              transition program, depending on how                  equipment as using an engine produced
                                            manufacturer newly enters the Class II                  the engine manufacturer chooses to                    under the Phase 3 transition program for
                                            equipment market during 2007, 2008 or                   make flex engines available. Engine                   equipment manufacturers. These
                                            2009, the manufacturer will calculate its               manufacturers choosing to use the                     labeling requirements allow EPA to
                                            average annual production level based                                                                         easily identify flex engines and
                                                                                                    delegated-assembly provisions
                                            only on the years during which it                                                                             equipment, verify which equipment
                                                                                                    described above will be enabling
                                            actually produced Class II equipment.                                                                         manufacturers are using these flex
                                                                                                    equipment manufacturers to make the
                                            Equipment manufacturers newly                                                                                 engines, and more easily monitor
                                                                                                    decision whether to complete the engine
                                            entering the Class II equipment market                                                                        compliance with the transition
                                                                                                    assembly in the Phase 3 configuration or
                                            after 2009 will not receive any                                                                               provisions. Labeling of the equipment
                                                                                                    to use a non-catalyzed muffler such that
                                            allowances under the transition program                                                                       could also help U.S. Customs to quickly
                                                                                                    the engine will meet Phase 2 standards
                                            and will need to incorporate Phase 3                                                                          identify equipment being imported
                                                                                                    and will therefore need to be counted as
                                            compliant engines into the Class II                                                                           lawfully using the Transition Program
                                                                                                    a flex engine. If engine manufacturers
                                            equipment beginning in 2011.                                                                                  for Equipment Manufacturers.
                                               Equipment using engines built before                 do not use the delegated-assembly
                                                                                                    provisions, equipment manufacturers                     While manufacturers will need to
                                            the effective date of the Phase 3                                                                             meet Phase 2 standards with their flex
                                            standards will not count toward an                      will need to depend on engine
                                                                                                    manufacturers to produce and ship flex                engines, they will not need to certify
                                            equipment manufacturer’s allowances.                                                                          them for the current model year. We are
                                            Equipment using engines that are                        engines that are already in a
                                                                                                    configuration meeting Phase 2 standards               instead applying the provisions of 40
                                            exempted from the Phase 3 standards                                                                           CFR 1068.265, which require
                                            for any reason will also not count                      and labeled accordingly. Each of these
                                                                                                    scenarios involves a different set of                 manufacturers to keep records showing
                                            toward an equipment manufacturer’s                                                                            that they meet emission standards
                                            allowances. For example, we are                         compliance provisions, which we
                                                                                                    describe below. Note that in no case                  without requiring submission of an
                                            allowing small-volume engine                                                                                  application for certification.
                                            manufacturers to continue producing                     may an equipment manufacturer remove
                                            Phase 2 engines for two model years                     a catalyzed muffler from an engine and                (ii) Compliance Based on Equipment
                                            after the Phase 3 standards apply. All                  replace it with a noncatalyzed muffler;               Manufacturers
                                            engines subject to the Phase 3 standards,               this would be a violation of the
                                                                                                    prohibition against tampering.                           We are adopting a different set of
                                            including those engines that are
                                                                                                                                                          compliance provisions for engine
                                            certified to FELs at higher levels than                 (i) Compliance Based on Engine                        manufacturers that make arrangements
                                            the standard, but for which an engine                   Manufacturers                                         to ship engines separately from exhaust-
                                            manufacturer uses exhaust ABT credits
                                                                                                      Engine manufacturers will in many                   system components. Under this
                                            to demonstrate compliance, will count
                                                                                                    cases produce complete engines. This                  scenario, as discussed above, the engine
                                            as Phase 3 complying engines and will
                                            not be included in an equipment                         will be the case if the engine does not               manufacturers must establish a
                                            manufacturer’s count of allowances.                     require a catalyst or if the engine                   relationship with the equipment
                                               The choice of the allowances based on                manufacturer chooses to design their                  manufacturers allowing the equipment
                                            30 percent of one year’s production is                  own exhaust systems and ship complete                 manufacturer to install catalysts to
                                            based on our best estimate of the degree                engine assemblies to equipment                        complete engine assembly in
                                            of reasonable lead time needed by the                   manufacturers.                                        compliance with Phase 3 standards.
                                            largest equipment manufacturers to                        Under this scenario, we are requiring                  In this case, engine manufacturers
                                            modify their equipment designs as                       that equipment manufacturers request a                will design and produce their Phase 3
                                            needed to accommodate engines and                       certain number of flex engines from the               engines and label them accordingly. The
                                            exhaust systems that have changed as a                  engine manufacturer. The regulatory                   normal path for these engines covered
                                            result of more stringent emission                       provisions specifically allow engine                  by the delegated-assembly provisions
                                            standards. We believe this level of                     manufacturers to continue to build and                will involve shipment of the engine
                                            allowances responds to the need for                     sell Phase 2 engines needed to meet the               without an exhaust system to the
                                            lead time to accommodate the workload                   market demand created by the transition               equipment manufacturer. The
                                            related to redesigning equipment                        program for equipment manufacturers,                  equipment manufacturer will then
                                            models to incorporate catalyzed                         provided they receive the written                     follow the engine manufacturer’s
                                            mufflers while ensuring a significant                   assurance from the equipment                          instructions to add the exhaust system
                                            level of emission reductions in the early               manufacturer that such engines are                    including the catalyst to bring the
                                            years of the new program.                               being procured for this purpose. We are               engine into a certified Phase 3
                                               As described in Section VI,                          requiring that engine manufacturers                   configuration. Under the transition
                                            technologies for controlling running                    keep copies of the written assurance                  program, equipment manufacturers will
                                            losses may involve a significant degree                 from equipment manufacturers for at                   choose for each of these engines to
                                            of integration between engine and                       least five years after the final year in              either follow the engine manufacturer’s
                                            equipment designs. In particular,                       which allowances are available.                       instructions to install a catalyst to make
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                                            routing a vapor line from the fuel tank                   Engine manufacturers are currently                  it compliant with Phase 3 standards or
                                            to the engine’s intake system depends                   required to label their certified engines             install a non-catalyzed muffler to make
                                            on engine modifications that will allow                 with a variety of information. We are                 it compliant with Phase 2 standards.
                                            for this connection. As a result, any                   requiring that engine manufacturers                   Any such engines downgraded to Phase
                                            equipment using flex engines will not                   producing complete flex engines under                 2 standards will count toward the
                                            need to meet running loss standards.                    this program identify on the engine                   equipment manufacturer’s total number

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                                            59090            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            of allowances under the transition                      before the 2011 model year and set up                    We are establishing an ongoing
                                            program.                                                arrangements for separate shipment of                 reporting requirement for equipment
                                               To make this work, engine                            catalyzed mufflers as described in                    manufacturers participating in the Phase
                                            manufacturers will need to take certain                 Section V.E.2. We expect any engine                   3 transition program. Under the
                                            steps to ensure overall compliance.                     manufacturers producing these early                   program, participating equipment
                                            First, engine manufacturers will need to                Phase 3 engines to continue production                manufacturers will be required to
                                            include emission data in the application                of comparable engine models that meet                 submit an annual report to EPA that
                                            for certification showing that the engine               Phase 2 standards rather than forcing all             shows its annual number of equipment
                                            meets Phase 2 standards without any                     equipment manufacturers to                            produced with flex engines under the
                                            modification other than installing a non-               accommodate the new engine design                     transition provisions in the previous
                                            catalyzed exhaust system. This may                      early. We believe it will not be                      year. Each report must include a
                                            include a specified range of                            appropriate for equipment                             cumulative count of the number of
                                            backpressures that equipment                            manufacturers to buy Phase 3 engines in               equipment produced with flex engines
                                            manufacturers must meet in procuring a                  2010 or earlier model years and                       for all years. To ease the reporting
                                            non-catalyst muffler. If the Phase 3                    downgrade them to meet Phase 2                        burden on equipment manufacturers,
                                            engine without a catalyst will otherwise                emission standards as described above.                EPA intends to work with the
                                            still be covered by the emission data                   We are therefore allowing the                         manufacturers to develop an electronic
                                            from engines produced in earlier model                  downgrading of Phase 3 engines only for               means for submitting information to
                                            years under the Phase 2 standards,                      2011 and later model years.                           EPA.
                                            manufacturers could rely on carryover                     Because equipment manufacturers in
                                            emission data to make this showing.                     many cases depend on engine                           (c) Additional Allowances for Small and
                                            Second, the installation instructions we                manufacturers to supply certified                     Medium-Sized Companies
                                            specify under the delegated-assembly                    engines in time to produce complying
                                                                                                                                                             We believe small-volume equipment
                                            provisions will need to describe the                    equipment, we are also adopting a
                                                                                                                                                          manufacturers will need a greater degree
                                            steps equipment manufacturers must                      hardship provision for all equipment
                                                                                                                                                          of lead time than manufacturers that sell
                                            take to make either Phase 3 engines or                  manufacturers (see § 1068.255). An
                                                                                                                                                          large volumes of equipment. The small
                                            Phase 2 flex engines. Third, for engine                 equipment manufacturer will be
                                                                                                                                                          companies are less likely to have access
                                            families that generate positive emission                required to use all its allowances under
                                                                                                                                                          to prototype engines from engine
                                            credits under the exhaust ABT program,                  the transition program described above
                                            engine manufacturers must generally                     before being eligible to use this                     manufacturers and generally have
                                            decrease the number of ABT credits                      hardship.                                             smaller engineering departments for
                                            generated by the engine family by 10                                                                          making the necessary design changes.
                                                                                                    (iii) Reporting and Recordkeeping                     Allowances representing thirty percent
                                            percent. We believe the 10 percent
                                                                                                    Requirements                                          of annual U.S.-directed production
                                            decrease should provide an emission
                                            adjustment commensurate with the                           Equipment manufacturers choosing to                provide larger companies with
                                            potential use of the equipment                          participate in the transition program                 substantial lead time to plan their
                                            manufacturer flexibility provisions. (As                will be required to keep records of the               product development for compliance
                                            described earlier in Section V.C.3, EPA                 U.S-directed production volumes of                    but smaller companies may have a
                                            is including an option that will allow                  Class II equipment in 2007 through 2009               product mix that requires extensive
                                            engine manufacturers to track the final                 broken down by equipment model and                    work to redesign products in a short
                                            configuration of the engines to                         calendar year. Equipment manufacturers                amount of time. We are therefore
                                            determine the actual number of engines                  will also need to keep records of the                 specifying that small-volume equipment
                                            that were downgraded for the TPEM                       number of flex engines they use under                 manufacturers may use this same
                                            program.)                                               this program.                                         transition program with allowances
                                               Equipment manufacturers using                           We are also establishing certain                   totaling 200 percent of the average
                                            allowances under these provisions must                  notification requirements for equipment               annual U.S.-directed production of
                                            keep records that allow EPA or engine                   manufacturers. Any manufacturer                       equipment using Class II engines from
                                            manufacturers to confirm that                           wishing to participate in the new                     2007 through 2009. For purposes of this
                                            equipment manufacturers followed                        transition provisions need to notify EPA              program, a small-volume equipment
                                            appropriate procedures and produced                     before producing equipment with flex                  manufacturer is defined as a
                                            an appropriate number of engines                        engines. They must submit information                 manufacturer that produces fewer than
                                            without catalysts. In addition, we are                  on production of Class II equipment                   5,000 pieces of nonhandheld equipment
                                            requiring that equipment manufacturers                  over the three-year period from 2007                  per year subject to EPA regulations in
                                            place a label on the engine as close as                 through 2009, calculate the number of                 each of the three years from 2007
                                            possible to the engine manufacturer’s                   allowances available, and provide basic               through 2009 or meets the SBA
                                            emission control information label to                   business information about the                        definition of small business equipment
                                            identify it as a flex engine. The location              company. For example, we will want to                 manufacturer (i.e., generally fewer than
                                            of this label is important since it                     know the names of related companies                   500 employees for manufacturers of
                                            effectively serves as an extension of the               operating under the same parent                       most types of equipment). These
                                            engine manufacturer’s label, clarifying                 company that are required to count                    allowances are spread over the same
                                            that the engine meets Phase 2 standards,                engines together under this program.                  four-year period between 2011 and
                                            not the Phase 3 standards referenced on                 This early notification will not be a                 2014. For example, a small-volume
                                            the original label. This avoids the                     significant burden to the equipment                   equipment manufacturer could
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                                            problematic situation of changing or                    manufacturer and will greatly enhance                 potentially use Phase 2 engines on all
                                            replacing labels, or requiring engine                   our ability to ensure compliance.                     their Class II equipment for two years or
                                            manufacturers to send different labels.                 Indeed, equipment manufacturers will                  they might sell half their Class II
                                               Engine manufacturers might choose to                 need to have the information required in              equipment with Phase 2 engines for four
                                            produce Class II engines that are                       the notification to know how to use the               years assuming production stayed
                                            compliant with the Phase 3 standards                    allowances.                                           constant over the four years.

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                      59091

                                               Medium-sized equipment                                  As noted above, the determination of               the overseas manufacturer, while
                                            manufacturers, i.e., companies that                     whether a company is a small- or                      avoiding the potential for importers to
                                            produce too much equipment to be                        medium-sized manufacturer will be                     inappropriately use allowances. These
                                            considered a small-volume equipment                     based primarily on production data over               regulations apply equally to foreign
                                            manufacturer but produce fewer than                     the 2007 through 2009 period submitted                equipment manufacturers and to
                                            50,000 pieces of Class II equipment                     to EPA before 2011. After a company’s                 domestic equipment manufacturers that
                                            annually, may also face difficulties                    status as a small- or medium-sized                    build equipment outside the country
                                            similar to that of small-volume                         company has been established based on                 that is eventually sold in the United
                                            equipment manufacturers. These                          the data, EPA is requiring that                       States.
                                            companies may be like small-volume                      manufactures keep that status even if a                 All equipment manufacturers wishing
                                            manufacturers if they have numerous                     company’s production volume grows                     to use the transition provisions for
                                            product lines with varied approaches to                 during the next few years, such that the              equipment produced outside the United
                                            installing engines and mufflers. Other                  company will no longer qualify as a                   States must comply with all the
                                            companies may be more like bigger                       small- or medium-sized company. EPA                   requirements discussed above. Along
                                            companies if they produce most of their                 believes equipment manufacturers need                 with the equipment manufacturer’s
                                            equipment in a small number of high-                    to know at the beginning of the                       notification described earlier, an
                                            volume models or have consistent                        transition program (i.e., 2011) how                   overseas equipment manufacturer will
                                            designs related to engine and muffler                   many allowances they will receive                     have to comply with various
                                            installations. We are therefore creating                under the program. Changing a                         compliance related provisions (see
                                            special provisions that will enable us to               company’s size determination during                   § 1054.626). These provisions are
                                            increase the number of transition                       the program, which could affect the                   similar to those adopted for nonroad
                                            allowances that are available to these                  number of allowances available, will                  diesel engines. As part of the
                                            medium-sized companies that have                        make it difficult for companies to plan               notification, such an equipment
                                            annual U.S.-directed production of                      and could lead to situations where a                  manufacturer will have to:
                                            Class II equipment of between 5,000 and                 company is in violation of the                          • Agree to provide EPA with full,
                                                                                                    provisions based on the use of                        complete and immediate access to
                                            50,000 in each of the three years from
                                                                                                    allowances that were previously                       conduct inspections and audits;
                                            2007 through 2009. To obtain
                                            allowances greater than 30 percent of
                                                                                                    allowed. Likewise, if a company is                      • Name an agent in the United States
                                                                                                    purchased by another company or                       for service;
                                            average annual production, a medium-
                                                                                                    merges with another company after the                   • Agree that any enforcement action
                                            sized manufacturer will need to notify
                                                                                                    determination of small- or medium-size                related to these provisions will be
                                            us before they produce equipment with
                                                                                                    status is established in 2010, the                    governed by the Clean Air Act;
                                            flex engines by January 31, 2010 if they                                                                        • Submit to the substantive and
                                                                                                    combined company could, at its option,
                                            believe the standard allowances based                                                                         procedural laws of the United States;
                                                                                                    keep the preexisting status for the
                                            on 30 percent of average annual                                                                                 • Agree to additional jurisdictional
                                                                                                    individual portions of the combined
                                            production of Class II equipment do not                 company. If the combined company                      provisions;
                                            provide adequate lead time starting in                  chooses to keep the individual                          • Agree that the equipment
                                            the 2011 model year. Additional                         designations, the combined company                    manufacturer will not seek to detain or
                                            allowances may be requested only if the                 must submit the annual reports on the                 to impose civil or criminal remedies
                                            equipment manufacturer can show they                    use of allowances broken down for each                against EPA inspectors or auditors for
                                            are on track to produce a number of                     of the previously separate companies.                 actions performed within the scope of
                                            equipment models representing at least                                                                        EPA employment related to the
                                            half of their total U.S.-directed                       (d) Requirements for Importers and                    provisions of this program;
                                            production volume of Class II                           Imported Equipment                                      • Agree that the equipment
                                            equipment in the 2011 model year                           Under this final rule, only companies              manufacturer becomes subject to the full
                                            compliant with all exhaust and                          that manufacture equipment can qualify                operation of the administrative and
                                            evaporative emission standards. As part                 for the relief provided under the Phase               judicial enforcement powers and
                                            of their request, the equipment                         3 transition provisions. Equipment                    provisions of the United States without
                                            manufacturer will need to describe why                  manufacturers producing equipment                     limitation based on sovereign immunity;
                                            more allowances are needed to                           outside the United States that comply                 and
                                            accommodate anticipated changes in                      with the provisions discussed below can                 • Submit all reports or other
                                            engine designs resulting from engine                    enjoy the same transition provisions as               documents in the English language, or
                                            manufacturers’ compliance with                          domestic manufacturers. Such                          include an English language translation.
                                            changing exhaust emission standards.                    equipment manufacturers that do not                     In addition to these provisions, we are
                                            The equipment manufacturer will also                    comply with the compliance-related                    requiring equipment manufacturers
                                            need to request a specific number of                    provisions discussed below will not                   producing equipment for importation
                                            additional allowances needed with                       receive allowances. Importers that do                 under the transition program to comply
                                            supporting information to show why                      not manufacture equipment will not                    with a bond requirement for equipment
                                            that many allowances are needed. We                     receive any transition relief directly, but           imported into the United States. We
                                            may approve additional allowances up                    could import equipment with a flex                    believe a bond program is an important
                                            to 70 percent of the average annual U.S.-               engine if it is covered by an allowance               tool for ensuring that importing
                                            directed production of Class II                         or transition provision associated with a             equipment manufacturers are subject to
                                            equipment from 2007 through 2009. If a                  foreign equipment manufacturer. This                  the same level of enforcement as
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                                            medium-sized company were granted                       will allow transition provisions to be                equipment manufacturers producing
                                            the full amount of additional                           used by equipment manufacturers                       equipment domestically. Specifically,
                                            allowances, they will have allowances                   producing equipment outside the                       we believe a bonding requirement for
                                            equivalent to 100 percent of the average                United States in the same way as                      these equipment manufacturers is an
                                            annual production volume of Class II                    equipment manufacturers producing                     important enforcement tool for ensuring
                                            equipment.                                              equipment domestically, at the option of              that EPA has the ability to collect any

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                                            59092            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            judgments assessed against an overseas                  (e) Provisions for Rotation-Molded Fuel               use of catalysts, a number of equipment
                                            equipment manufacturer for violations                   Tanks                                                 manufacturers, especially those that
                                            of these transition provisions.                            Equipment manufacturers may face                   make low-volume models, believe it
                                               Under a bond program, the                            challenges in transitioning to rotation-              may be necessary to produce their own
                                            participating equipment manufacturer                                                                          unique engine/muffler designs, but
                                                                                                    molded fuel tanks that meet the new
                                            will have to maintain a bond in the                                                                           using the same catalyst substrate already
                                                                                                    permeation standards. These modified
                                            proper amount that is payable to satisfy                                                                      used in a muffler that is part of an
                                                                                                    fuel tanks may require equipment
                                            judgments that result from U.S.                                                                               engine manufacturers certified
                                                                                                    manufacturers to adjust the designs of
                                            administrative or judicial enforcement                                                                        configuration. In this situation, the
                                                                                                    their equipment to ensure that the new
                                            actions for conduct in violation of the                                                                       engine will not be covered by the engine
                                                                                                    fuel tanks can be incorporated without
                                            Clean Air Act. The equipment                                                                                  manufacturer’s certificate, as the engine/
                                                                                                    problems. We are therefore allowing
                                            manufacturer will generally obtain a                                                                          muffler design is not within the
                                                                                                    equipment manufacturers to use
                                            bond in the proper amount from a third                                                                        specifications for the certified engine.
                                                                                                    noncompliant rotational-molded fuel
                                            party surety agent that has been listed                                                                       The equipment manufacturer is
                                            with the Department of the Treasury. As                 tanks for two additional years on
                                                                                                                                                          therefore producing a new distinct
                                            discussed in Sections V.E.6, EPA is                     limited numbers of 2011 and 2012
                                                                                                                                                          engine which is not covered by a
                                            establishing other bond requirements as                 model year equipment using Class II
                                                                                                                                                          certificate and therefore needs to be
                                            well. An equipment manufacturer that                    engines. Equipment manufacturers may
                                                                                                                                                          certified with EPA.
                                            is required to post a bond under any of                 use noncompliant rotational-molded                       To allow the possibility of an
                                            these provisions will be required to                    fuel tanks if the production volume of                equipment manufacturer certifying such
                                            obtain only one bond of the amount                      the fuel tank design used in Class II                 an engine/muffler design with EPA, we
                                            specified for those sections. Equipment                 equipment models is collectively no                   are establishing a simplified engine
                                            manufacturers may avoid the bond                        more than 5,000 units in the 2011 model               certification process for nonhandheld
                                            requirements based on the level of                      year. In the 2012 model year, equipment               equipment manufacturers (see
                                            assets in the United States, as described               manufacturers may use noncompliant                    § 1054.612). Under the simplified
                                            in Section V.E.6.                                       rotational-molded fuel tanks if the                   certification process, the nonhandheld
                                               In addition to the equipment                         production volume of the fuel tank                    equipment manufacturer will need to
                                            manufacturer requirements discussed                     design used in Class II equipment                     demonstrate that it is using the same
                                            above, EPA is also requiring importers                  models is collectively no more than                   catalyst substrate as the approved
                                            of equipment with flex engines from a                   5,000 units in the 2012 model year, but               engine manufacturer’s engine family,
                                            complying equipment manufacturer to                     the total number of exempted rotational-              provide information on the differences
                                            comply with certain provisions. EPA                     molded fuel tanks across the                          between their engine/exhaust system
                                            believes these importer provisions are                  manufacturer’s Class II equipment is                  and the engine/exhaust system certified
                                            essential to EPA’s ability to monitor                   limited to 10,000 units. If production                by the engine manufacturer, and explain
                                            compliance with the transition                          volumes are greater than 5,000 for a                  why the emissions deterioration data
                                            provisions. Therefore, the regulations                  given fuel tank design (or greater than               generated by the engine manufacturer
                                            require each importer to notify EPA                     10,000 corporate-wide in 2012), all                   will be representative for the equipment
                                            prior to their initial importation of                   those tanks must comply with emission                 manufacturer’s configuration. The
                                            equipment with flex engines. Importers                  standards. Tank designs would be                      equipment manufacturer will need to
                                            will be required to submit their                        considered identical if they are                      perform low-hour emission testing on
                                            notification before importing equipment                 produced under a single part number to                an engine equipped with their modified
                                            with flex engines from a complying                      conform to a single design or blueprint.              exhaust system and demonstrate that it
                                            equipment manufacturer. The                             In addition, tank designs would be                    meets the emission standards after
                                            importer’s notification will need to                    considered identical if they differ only              applying the engine manufacturer’s
                                            include the following information:                      with respect to production variability,               deterioration factors for the certified
                                               • The name and address of importer                   post-production changes (such as                      engine family. We will not require
                                            (and any parent company);                               different fittings or grommets), supplier,            production-line testing for these
                                               • The name and address of the                        color, or other extraneous design                     engines. The equipment manufacturer
                                            manufacturers of the equipment and                      variables. We originally proposed to                  will be responsible to meet all the other
                                            engines the importer expects to import;                 allow noncompliant rotation-molded                    requirements of an engine manufacturer
                                            and                                                     fuel tanks for any equipment that was                 under the regulations, including
                                               • Number of units of equipment with                  counted under the allowances described                labeling, warranty, defect reporting,
                                            flex engines the importer expects to                    in this section which used flex engines               payment of certification fees, and other
                                            import for each year broken down by                     meeting Phase 2 exhaust emission                      things. The useful life period selected
                                            equipment manufacturer.                                 standards. However, the approach being                for the original certification will also
                                               In addition, EPA is requiring that any               finalized today could be applied to any               apply for the equipment manufacturer’s
                                            importer electing to import to the                      equipment using Class II engines                      streamlined certification. This provision
                                            United States equipment with flex                       (subject to the constraints noted above),             is primarily intended for easing the
                                            engines from a complying equipment                      whether or not the equipment uses a                   transition to new standards. Starting in
                                            manufacturer must submit annual                         flex engine.                                          the 2015 model year, we are therefore
                                            reports to EPA. The annual report will                                                                        limiting these recertification provisions
                                            include the number of units of                          (4) Equipment Manufacturer
                                                                                                                                                          to small-volume emission families (sales
                                            equipment with flex engines the                         Recertification
                                                                                                                                                          below 5,000 units).
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                                            importer actually imported to the                         It has generally been engine
                                            United States in the previous calendar                  manufacturers that certify with EPA for               (5) Special Provisions Related to
                                            year; and identify the equipment                        exhaust emissions because the                         Altitude
                                            manufacturers and engine                                standards are engine-based. However,                    For nonhandheld engines we are
                                            manufacturers whose equipment and                       because the Phase 3 nonhandheld                       requiring compliance with our
                                            engines were imported.                                  standards are expected to result in the               standards at all altitudes, consistent

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                        59093

                                            with other engine categories.97                         75 percent of the population are above                areas while still addressing the
                                            However, since spark-ignition engines                   4,000 feet (see 45 FR 5988, January 24,               manufacturers’ concerns regarding
                                            without electronic control of air/fuel                  1980 and 45 FR 14079, March 4, 1980).                 control over distribution practices and
                                            ratio cannot compensate for changing                       Assuming we grant a certificate that               point of sale. In fact, it is worth noting
                                            air density, their emissions generally                  includes a manufacturer’s reliance on an              that we expect this overall approach to
                                            change with changing altitude. In                       altitude kit during testing, any                      be more effective in achieving emission
                                            recognition of this technological limit,                compliance testing at higher altitudes                reductions than the current regulations
                                            we are adopting special testing and                     (more precisely, lower barometric                     under Phase 2. Nevertheless, should we
                                            compliance provisions related to                        pressures) would be conducted with the                determine that operation of engines in
                                            altitude. As described in Section V.C.1,                altitude kit installed on the engine                  high-altitude areas without altitude kits
                                            we are requiring that nonhandheld                       according to the manufacturer’s                       installed is widespread, we would
                                            engines meet emission standards                         instructions. Note that manufacturers                 reconsider the need for additional
                                            without an altitude kit, but will allow,                would not be required to submit test                  requirements.
                                            in certain cases, testing at barometric                 data from high-altitude testing in their
                                                                                                    applications, provided they could                     (6) Special Provisions for Compliance
                                            pressures below 94.0 kPa (which is                                                                            Assurance
                                            roughly equivalent to an elevation of                   demonstrate through engineering
                                            2,000 feet above sea level) using an                    analysis the basis for knowing the                       EPA’s experiences in recent years
                                            altitude kit. (An altitude kit may be as                altitude kits will allow the engines to               have highlighted the need for more
                                            simple as a single replacement part for                 meet the emission standards at high                   effective tools for preventing the
                                            the carburetor that allows a greater                    altitude. Any high-altitude testing of an             introduction of noncompliant engines
                                            volumetric flow of air into the                         engine family that does not use these                 into U.S. commerce. These include
                                            carburetor to make the engine operate as                high altitude provisions will be tested               noncompliant engines sold without
                                            it would at low altitudes.) Such kits                   without an altitude kit installed.                    engine labels or with counterfeit engine
                                            were allowed under part 90 and we are                      We considered requiring                            labels. We are adopting the special
                                            keeping the provisions that already                     manufacturers relying on altitude kits to             provisions in the following sections to
                                            apply in part 90 related to descriptions                ensure that all engines sold in high-                 help us address these problems.
                                            of these altitude kits in the application               altitude areas were sold with altitude
                                                                                                                                                          (a) Importation Form
                                            for certification. This includes a                      kits installed, but determined that such
                                                                                                    a requirement would have been                            Importation of engines is regulated
                                            description of how engines comply with                                                                        both by EPA and by U.S. Customs and
                                            emission standards at varying                           burdensome to the manufacturers,
                                                                                                    impractical, and very disruptive to the               Border Protection. Current Customs
                                            atmospheric pressures, a description of                                                                       regulations specify that anyone
                                                                                                    market, and may not work in practice.
                                            the altitude kits, and the associated part                                                                    importing a nonroad engine (or
                                                                                                    Certificate holders will be the engine
                                            numbers.                                                                                                      equipment containing a nonroad engine)
                                                                                                    manufacturers, which generally have
                                               During certification, manufacturers                                                                        must complete a declaration form before
                                                                                                    little or no control over the location at
                                            will have two choices regarding testing                                                                       importation. EPA has created
                                                                                                    which the sale to the ultimate purchaser
                                            and compliance at barometric pressures                                                                        Declaration Form 3520–21 for this
                                                                                                    is made. In most cases, the engines will
                                            below 94.0 kPa: (1) Test engines for                                                                          purpose. Customs requires this in many
                                                                                                    be sold to equipment manufacturers
                                            demonstrating compliance with the                                                                             cases, but there are times when they
                                                                                                    and/or through distributors or large
                                            standards without an altitude kit; or (2)                                                                     allow engines to be imported without
                                                                                                    retailers. However, even in cases when
                                            test engines for demonstrating                                                                                the proper form. It will be an important
                                                                                                    a manufacturer might have control over
                                            compliance with the standards using an                  the location at which the sale to the                 advantage for EPA’s own compliance
                                            altitude kit. Those manufacturers                       ultimate purchaser is made, it is not                 efforts to be able to enforce this
                                            choosing Option 2 will be required to                   clear that the manufacturer could ensure              requirement. We are therefore
                                            identify the altitude range for which it                that every piece of equipment sold in a               modifying part 90 to mirror the existing
                                            expects proper engine performance and                   high-altitude area has an engine with an              Customs requirement (and the EPA
                                            emission control will occur with and                    altitude kit installed. In light of these             requirement in § 1068.301) for importers
                                            without the altitude kit, state that                    potential problems, we believe the                    to complete and retain the declaration
                                            engines will comply with applicable                     approach being finalized will be                      form before importing engines (see
                                            emission standards throughout the                       effective and is the most appropriate                 § 90.601). This will facilitate a more
                                            useful life with the altitude kit installed             approach. It is not tampering for a                   straightforward processing of cases in
                                            according to instructions, and include                  consumer not to install the altitude kit.             which noncompliant products are
                                            any supporting information.                             We expect it will be common practice                  brought to a U.S. port for importation
                                            Manufacturers choosing Option 2 will                    for consumers to install altitude kits                because currently no requirement exists
                                            also need to describe a plan for making                 because they are inexpensive, easy to                 for measuring emissions or otherwise
                                            information and parts available to                      install, and improve performance at                   proving that engines are noncompliant
                                            consumers such that widespread use of                   higher altitudes. Manufacturers have                  at the port facility. Since this is already
                                            altitude kits will reasonably be expected               also emphasized that retailers and                    a federal requirement, we are making
                                            in high-altitude areas. For nonhandheld                 consumers are well aware of the need to               this effective immediately with the final
                                            engines, this will involve all counties                 modify engines for proper operation in                rule.
                                            with elevations substantially above                     high-altitude areas. Toward that end, we
                                            4,000 feet (see Appendix III to part                    are requiring manufacturers to make the               (b) Assurance of Warranty Coverage
                                            1068). This includes all U.S. counties                  information and parts sufficiently easy                 Manufacturers of Small SI engines
                                            where 75 percent of the land mass and
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                                                                                                    for the consumer to obtain so that the                subject to the standards are required to
                                                                                                    manufacturer ‘‘would reasonably expect                provide an emission-related warranty so
                                              97 Note that we are not changing exhaust
                                                                                                    that altitude kits would be widely used               owners are able to have repairs done at
                                            standards for handheld engines and are therefore
                                            codifying altitude provisions in the new part 1054
                                                                                                    in the high-altitude counties.’’ This                 no expense for emission-related defects
                                            that are consistent with those that apply under part    approach should result in effective                   during an initial warranty period.
                                            90.                                                     control of emissions in high-altitude                 Established companies are able to do

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                                            59094            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            this with a network of authorized repair                provisions related to the 100-mile                    of the costs of complying with EPA
                                            facilities that can access replacement                  specification in the final rule. For                  regulations.
                                            parts and properly correct any defects.                 example, there may be some companies                    To address this concern, we are
                                            In contrast, we are aware that some                     with a regional market that have an                   adopting a requirement for
                                            manufacturers are selling certified                     effective network of repair facilities in             manufacturers of certified engines and
                                            engines in the United States without                    that region, but not in other parts of the            equipment (including importers) to post
                                            any such network for processing                         country. In this circumstance, it is                  a bond to cover any potential
                                            warranty claims. As such, owners who                    appropriate to allow the manufacturer                 compliance or enforcement actions
                                            find that their engines have an                         multiple paths for showing that it will               under the Clean Air Act. Manufacturers
                                            emission-related defect are unable to                   be able to respond effectively to all                 and importers will be exempt from the
                                            properly file a warranty claim or get                   warranty claims nationwide. We are                    bond requirement if they are able to
                                            repairs that should be covered by the                   therefore including the 100-mile                      sufficiently demonstrate an assurance
                                            warranty. In effect, this allows                        approach as an additional alternative in              that they will meet any compliance- or
                                            companies to certify their engines and                  the regulations, as well as including a               enforcement-related obligations. The
                                            agree to provide warranty coverage                      variety of adjustments to address the                 bonding requirements apply for
                                            without ever paying for legitimate                      concerns raised in the comments.                      companies that do not have fixed assets
                                            repairs that should be covered by the                      We believe these requirements are                  in the United States meeting the
                                            warranty. We are therefore requiring                    both necessary and effective for                      smallest applicable thresholds from the
                                            that all manufacturers demonstrate                      ensuring proper warranty coverage for                 following:
                                            several things before we will approve                   all owners. At the same time, we are                    • A threshold of $3 million applies
                                            certification for their engines (see                    adopting a flexible approach that allows              for manufacturers that have been
                                            § 90.1103 and § 1054.120). The                          companies to choose from a variety of                 certificate holders in each of the
                                            following provisions apply to                           alternatives for providing warranty                   preceding ten years without failing a
                                            manufacturers who certify engines, and                  service. We therefore believe these                   test conducted by EPA officials or
                                            include importers who certify engines.                  requirements are readily achievable for               having been found by EPA to be
                                            First, we are requiring manufacturers to                any company. We are therefore                         noncompliant under applicable
                                            provide and monitor a toll-free                         implementing these requirements                       regulations.
                                                                                                    starting with the 2010 model year. This                 • A threshold of $6 million applies
                                            telephone number and an e-mail
                                                                                                    should allow time for the administrative              for secondary engine manufacturers or
                                            address for owners to receive
                                                                                                    steps necessary to arrange for any of the             for equipment manufacturers that certify
                                            information about how to make a
                                                                                                    allowable compliance options described                no engines with respect to exhaust
                                            warranty claim and how to make
                                                                                                    above.                                                emission standards. A secondary engine
                                            arrangements for authorized repairs.
                                                                                                                                                          manufacturer is generally a certifying
                                            Second, we are requiring manufacturers                  (c) Bond Requirements Related to                      company that buys partially complete
                                            to provide a source of replacement parts                Enforcement and Compliance Assurance                  engines for final assembly from another
                                            within the United States. For imported                     Certification initially involves a                 engine manufacturer.
                                            parts, this will require at least one                   variety of requirements to demonstrate                  • A threshold of $10 million applies
                                            distributor within the United States.                   that engines and equipment are                        for companies that do not qualify for the
                                               Finally, we are requiring                            designed to meet applicable emission                  smaller specified bond thresholds.
                                            manufacturers to have a network of                      standards. After certification is                       The value of the bond must be at least
                                            authorized repair facilities or to take one             complete, however, several important                  $500,000, though a higher bond value
                                            of multiple alternate approaches to                     obligations apply to the certifying                   may apply based on multiplying the
                                            ensure that owners will be able to get                  manufacturer or importer. For example,                annual volume of shipments by a per-
                                            free repair work done under warranty.                   we require ongoing testing of                         engine rate. The per-engine bond
                                            In the proposal we specified that                       production engines, as well as reporting              amount is $25 for handheld engines and
                                            warranty-related repairs may be limited                 of recurring defects. Manufacturers may               Class I engines. Class II engines cover a
                                            to authorized repair facilities as long as              also need to pay penalties if there is a              much wider range of applications, so we
                                            owners did not have to travel more than                 violation and may need to perform a                   further differentiate the bond for those
                                            100 miles for repairs (or further in                    recall if their products are found to be              engines. The proposed per-engine bond
                                            remote areas of the country). For                       noncompliant. For companies operating                 amounts for Class II engines is $50 for
                                            companies without a nationwide repair                   within the United States, we are                      engines between 225 and 740 cc, $100
                                            network, we proposed alternative                        generally able to take steps to                       for engines between 740 and 1,000 cc,
                                            methods for meeting warranty                            communicate clearly and insist on                     and $200 for engines above 1,000 cc.
                                            obligations, including free shipping, free              compliance with applicable regulations.               These values are generally scaled to be
                                            service calls, or reimbursement of costs                For example, in certain circumstances                 approximately 10 to 15 percent of the
                                            through local nonauthorized service                     we may meet with specific company                     retail value. In the case of handheld
                                            centers. Manufacturers suggested a                      representatives, halt production, or                  engines, this is based on the retail value
                                            different metric for demonstrating a                    seize assets. For companies without staff             of equipment with installed engines,
                                            readiness to meet warranty obligations,                 or assets in the United States, these                 since these products are generally
                                            focusing on maintaining authorized                      alternatives are not available.                       marketed that way. Class II engines are
                                            service centers in every metropolitan                   Accordingly, we have limited ability to               very often sold as loose engines to
                                            area with a population of 100,000 or                    enforce our requirements or recover any               equipment manufacturers, so the
                                            greater (according to the 2000 census).                 appropriate penalties, which increases                corresponding per-engine bond values
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                                            We agree that the suggested approach                    the risk of environmental problems as                 are based on the retail value of the
                                            would provide an effective                              well as problems for owners. This                     engine alone. This approach is similar
                                            demonstration of a valid warranty                       creates the potential for a company to                to the bond requirements that apply for
                                            network and are including that in the                   gain a competitive advantage if they do               nonroad diesel engines (see § 1039.626).
                                            regulation; however, we believe it is still             not have substantial assets or operations               The total bond amount will be based
                                            appropriate to include the proposed                     in the United States by avoiding some                 on the value of imported products over

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                      59095

                                            a one-year period. If a bond is used to                 products. Importers can only declare a                (h) Partially Complete Engines
                                            satisfy a judgment, the company will                    model year up to one year before the                    As described in Section VIII, we are
                                            then be required to increase the amount                 calendar year of importation in cases                 clarifying the engine manufacturers’
                                            of the bond within 90 days of the date                  where new emission standards start to                 responsibilities for certification with
                                            the bond is used to cover the amount                    apply. We are adopting this requirement               respect to partially complete engines.
                                            that was used. Also, we will require the                for all engine categories subject to part             While this is intended to establish a
                                            bond to remain in place for five years                  1068. See the detailed discussion of this             path for secondary engine
                                            after the company no longer imports                     issue in Section VIII.C.                              manufacturers to get their engines from
                                            Small SI engines.
                                               These bonding requirements apply for                 (f) Import-Specific Information at                    the original engine manufacturer, we are
                                            2010 and later model year engines and                   Certification                                         aware that this will also prevent
                                            are enforceable for all products                                                                              manufacturers from selling partially
                                            introduced into U.S. commerce starting                     We are requiring additional                        complete engines as a strategy to
                                            January 1, 2010.                                        information to improve our ability to                 circumvent certification requirements. If
                                                                                                    oversee compliance related to imported                long blocks or engines without fuel
                                            (d) Bond Requirements Related to                        engines (see § 90.107 and § 1054.205). In             systems are introduced into U.S.
                                            Warranty                                                the application for certification, we are             commerce, either the original
                                              Warranty is an additional potential                   requiring the following additional                    manufacturer or the company
                                            compliance obligation. Engine                           information starting with the 2010                    completing engine assembly will need
                                            manufacturers must service warranty                     model year: (1) The port or ports at                  to hold a certificate for that engine.
                                            claims for emission-related defects that                which the manufacturer has imported                   (7) Using Certified Small SI Engines in
                                            occur during the prescribed warranty                    engines over the previous 12 months, (2)              Marine Applications
                                            period. We have experience with                         the names and addresses of the agents
                                            companies that have faced compliance-                   the manufacturer has authorized to                       Manufacturers have described
                                            related problems where it was clear that                import the engines, and (3) the location              situations in which Small SI engines are
                                            they did not have the resources to make                 of the test facilities in the United States           used in marine applications. As
                                            warranty repairs if that were necessary.                where the manufacturer will test the                  described in Section III.E.5, we are
                                            Such companies benefit from                             engines if we select them for testing                 allowing limited numbers of certified
                                            certification without bearing the full                  under a selective enforcement audit. See              Small SI engines to be used as marine
                                            range of associated obligations. We                     Section 1.3 of the Summary and                        propulsion engines without certifying to
                                            believe it is appropriate to add a                      Analysis of Comments for further                      the Marine SI emission standards in part
                                            requirement to post a bond to ensure                    discussion related to naming test                     1045 (see § 1045.610).
                                            that a company can meet their warranty                  facilities in the United States. The                  (8) Alternate Fuels
                                            obligations. The concern for being able                 current regulations in part 90 do not
                                            to meet these obligations applies equally               include these specific requirements;                     The emission standards apply to all
                                            to domestic and foreign manufacturers.                  however, we do specify already that we                spark-ignition engines regardless of the
                                            The biggest indicator of a                              may select imported engines at a port of              fuel they use. Almost all Small SI
                                            manufacturer’s ability to make warranty                 entry. In such a case, we will generally              engines operate on gasoline, but these
                                            repairs relates to the presence of repair               direct the manufacturer to do testing at              engines may also operate on other fuels,
                                            facilities in the United States. We are                                                                       such as natural gas, liquefied petroleum
                                                                                                    a facility in the United States. The new
                                            therefore adopting a bond requirement                                                                         gas, ethanol, or methanol. The test
                                                                                                    provision allows the manufacturers to
                                            starting with the 2010 model year for all                                                                     procedures in 40 CFR part 1065 describe
                                                                                                    make these arrangements ahead of time
                                            manufacturers (including importers)                                                                           adjustments needed for operating test
                                                                                                    rather than relying on EPA’s selection of
                                            that do not have a repair network in the                                                                      engines with oxygenated fuels.
                                                                                                    a test lab. Also, the current regulations
                                            United States that is available for                                                                              In some special cases, a single engine
                                                                                                    state in § 90.119 that EPA may conduct
                                            processing warranty repairs (see                                                                              is designed to alternately run on
                                                                                                    testing at any facility to determine
                                            § 90.1007 and § 1054.120). Such a repair                                                                      different fuels. For example, some
                                                                                                    whether engines meet emission
                                            network will need to involve at least                                                                         engines can switch back and forth
                                            100 authorized repair facilities in the                                                                       between natural gas and LPG. We are
                                            United States, or at least one such                     (g) Counterfeit Emission Labels                       adding a clarification to the regulations
                                            facility for each 5,000 engines sold in                                                                       to describe how manufacturers would
                                            the United States, whichever is less.                      We have observed that some                         submit certification data and divide
                                            Companies not meeting these criteria                    importers attempt to import                           such engines into engine families.
                                            will need to post a bond as described                   noncompliant products by creating an                  Manufacturers would submit test data
                                            above for compliance assurance. We                      emission control information label that               for each type of fuel. If a manufacturer
                                            will allow companies that must post                     is an imitation of a valid label from                 certifies a dual-fuel engine family, but
                                            bond to arrange for warranty repairs to                 another company. We are not requiring                 produces engines that run only on one
                                            be done at independent facilities. Note                 that certifying manufacturers take steps              fuel where that dedicated-fuel engine is
                                            that a single bond payment will be                      to prevent this, but we are including a               identical to the certified dual-fuel
                                            required for companies that must post                   provision that specifically allows                    engine with respect to that fuel, those
                                            bond for compliance-related obligations,                manufacturers to add appropriate                      engines could be included in the same
                                            as described above, in addition to the                  features to prevent counterfeit labels.               family. This is also true for the second
                                            bond for warranty-related obligations.                  This may include the engine’s serial                  fuel. For example, if a manufacturer
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                                                                                                    number, a hologram, or some other                     produces an engine that can run on both
                                            (e) Restrictions Related to Naming                      unique identifying feature. This                      gasoline and LPG, and also produces
                                            Model Years                                             provision is effective immediately upon               that engine model in gasoline-only and
                                               We are adopting the proposed                         completion of the final rule since it is              LPG-only versions, without adjusting
                                            provisions that restrict what model                     an allowance and not a requirement (see               the calibration or other aspects of each
                                            years can be assigned to imported                       § 90.114 and § 1054.135).                             respective configuration, those engines

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                                            59096            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            may all be included in the same engine                  engine operation. However, given the                  step during certification based on
                                            family. In effect, these engines are                    shorter useful life for many Small SI                 information showing that 60 to 80
                                            covered by the original certificate                     engines, this will not make for a                     percent of in-use engines get the
                                            because they are made to conform to the                 meaningful process for establishing                   specified maintenance at the
                                            description included in the original                    deterioration factors. For example,                   recommended interval. We will approve
                                            application for certification except that               emission levels in Small SI engines may               the use of such maintenance based on
                                            they do not have the full functionality                 not stabilize before deterioration begins             the relative effect on performance and
                                            of the dual-fuel engines.                               to affect emission levels, which will                 emissions. For example, we may allow
                                               Once an engine is placed into service,               prevent the engine from ever truly                    scheduled fuel-injector replacement if
                                            someone might want to convert it to                     having stabilized emission levels. Also,              survey data show this is done at the
                                            operate on a different fuel. This would                 the low-hour emission test should occur               recommended interval for 65 percent of
                                            take the engine out of its certified                    early enough for the deterioration factor             engines and performance degradation is
                                            configuration, so we are requiring that                 to adequately represent the deterioration             shown to be roughly proportional to the
                                            someone performing such a fuel                          over the engine’s lifetime.                           degradation in emission control for
                                            conversion go through a certification                      We are requiring that Small SI engines             engines that do not have their fuel
                                            process. We will allow certification of                 with a useful life above 300 hours can                injectors replaced.
                                            the complete engine using normal                        be presumed stable after 12 hours with                   One maintenance step of particular
                                            certification procedures, or the                        low-hour testing generally occurring                  interest is replacement of air filters. In
                                            aftermarket conversion kit could be                     after no more than 24 hours of engine                 larger spark-ignition engines, we do not
                                            certified using the provisions of 40 CFR                operation. For Small SI engines with
                                                                                                                                                          treat replacement of air filters as critical
                                            part 85, subpart V. This contrasts with                 useful life below 300 hours, we are
                                                                                                                                                          emission-related maintenance, largely
                                            the existing provisions that allow for                  requiring a combination of provisions to
                                                                                                                                                          because those engines have feedback
                                            fuel conversions that can be                            address this concern. First, we are
                                                                                                                                                          controls to compensate for changes in
                                            demonstrated not to increase emission                   allowing manufacturers to establish a
                                                                                                                                                          varying pressure drop across the air
                                            levels above the applicable standard.                   stabilization period that is less than 12
                                                                                                                                                          filter. However, for Small SI engines
                                            We are applying this requirement                        hours without showing that emission
                                                                                                                                                          varying air flow through the air filter
                                            starting January 1, 2010. (See § 90.1003                levels have fully stabilized (see
                                                                                                                                                          has a direct effect on the engine’s air-
                                            and § 1054.635.)                                        § 1054.501). Second, we are specifying
                                                                                                                                                          fuel ratio, which in turn directly affects
                                                                                                    that low-hour testing must generally
                                            (9) Other Provisions                                                                                          the engine’s emission rates for each of
                                                                                                    occur after no more than 15 hours of
                                              We are also making a variety of                       engine operation (see § 1054.801). This               the regulated pollutants. Service
                                            changes in the provisions that make up                  allows some substantial time for break-               accumulation generally takes place in
                                            the certification and compliance                        in, stabilization, and running multiple               laboratory conditions with far less
                                            program. Most of these changes serve                    tests, without approaching a significant              debris, dust, or other ambient particles
                                            primarily to align with the regulations                 fraction of the useful life. Third, we are            that will cause filter loading, so filter
                                            we have started to apply to other types                 requiring that manufacturers                          changes should be unnecessary to
                                            of engines.                                             consistently test low-hour production-                address this conventional concern. We
                                              The new warranty provisions are                       line engines (and emission-data engines               are concerned that the greater effect is
                                            based on the requirements that already                  in the case of carryover deterioration                from fuel and oil that may deposit on
                                            apply under 40 CFR part 90. We are                      factors for certification) using the same             the back side of the filter, especially
                                            adding an administrative requirement to                 degree of service accumulation to avoid               from crankcase ventilation into the
                                            describe the provisions of the emission-                inaccurate application of deterioration               intake. This effect will go undetected if
                                            related warranty in the owners manual.                  factors (see § 1054.240 and § 1054.305).              there are no measurements with filters
                                            We expect that many manufacturers                          We are clarifying the maintenance                  that have experienced significant engine
                                            already do this but believe it is                       that manufacturers may perform during                 operation. We believe it would be
                                            appropriate to require this as a routine                service accumulation as part of the                   appropriate for this rulemaking to allow
                                            practice. (See § 1054.120.)                             certification process. The general                    manufacturers to clean or change air
                                              Testing new engines requires a period                 approach is to allow any amount of                    filters as long as manufacturers perform
                                            of engine operation to stabilize emission               maintenance that is not emission-                     emission measurements before and after
                                            levels. The regulations specify two                     related, but to allow emission-related                these maintenance steps. It would be
                                            separate figures for break-in periods for               maintenance only if it is a routine                   best to perform testing with each air
                                            purposes of certification testing. First,               practice with in-use engines. In most of              filter change; however, we would find it
                                            engines are generally operated long                     our emission control programs we                      acceptable if manufacturers tested
                                            enough to stabilize emission levels.                    specify that 80 percent of in-use engines             engines before and after every other air
                                            Second, we establish a limit on how                     should undergo a particular                           filter change. This approach allows for
                                            much an engine may operate and still be                 maintenance step before manufacturers                 continued air filter changes, consistent
                                            considered a ‘‘low-hour’’ engine. The                   can do that maintenance during service                with our testing to establish the
                                            results of testing with the low-hour                    accumulation for certification testing.               feasibility of the Phase 3 emission
                                            engine are compared with a deteriorated                 We are aware that Small SI engines are                standards, but properly identifies the
                                            value after some degree of service                      predominantly operated by homeowners                  effect on emissions. We are taking a
                                            accumulation to establish a                             with widely varying practices in                      similar approach for maintenance with
                                            deterioration factor. For Marine SI                     servicing their lawn and garden                       spark plugs, except that tests must occur
                                            engines, we are requiring that the engine               equipment. As such, achieving a rate of               before and after each step to clean or
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                                            can be presumed to have stabilized                      80 percent may be possible only for the               replace the spark plugs. We will be
                                            emission levels after 12 hours of engine                most obvious maintenance steps. We are                interested in a future rulemaking to set
                                            operation, with a provision allowing                    therefore adopting a more                             emission standards based on less
                                            approval for more time if needed, and                   accommodating approach for Small SI                   optimistic assumptions regarding the
                                            we generally require that low-hour test                 engines. In particular, we are allowing               degree of air filter and spark plug
                                            engines have no more than 30 hours of                   manufacturers to perform a maintenance                maintenance with in-use equipment.

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                      59097

                                            See Section 2.4 of the Summary and                      conformity for those engines to avoid a               small businesses for the SBAR Panel.
                                            Analysis of Comments for a more                         tampering violation.                                  Companies that manufacture equipment
                                            detailed discussion related to                                                                                and that employ fewer than 500 people,
                                                                                                    F. Small-Business Provisions
                                            maintenance.                                                                                                  or fewer than 750 people for
                                               We are defining criteria for                         (1) Small Business Advocacy Review                    manufacturers of construction
                                            establishing engine families that are                   Panel                                                 equipment, or fewer than 1,000 people
                                            very similar to what is currently                                                                             for manufacturers of generators, are
                                                                                                       On August 17, 2006, we convened a
                                            specified in 40 CFR part 90. We are                                                                           considered small businesses for the
                                                                                                    Small Business Advocacy Review Panel
                                            requiring that engines with                                                                                   SBAR Panel. Based on this information,
                                                                                                    (SBAR Panel or the Panel) under section
                                            turbochargers be in a different family                                                                        we asked 25 companies that met the
                                                                                                    609(b) of the Regulatory Flexibility Act
                                            than naturally aspirated engines since                                                                        SBA small business thresholds to serve
                                                                                                    (RFA), as amended by the Small
                                            that will be likely to substantially                                                                          as small entity representatives for the
                                            change the engine’s emission                            Business Regulatory Enforcement
                                                                                                                                                          duration of the Panel process. Of these
                                            characteristics. Very few if any Small SI               Fairness Act of 1996 (SBREFA). The
                                                                                                                                                          25 companies, 14 of them represented a
                                            engines are turbocharged today so this                  purpose of the Panel was to collect the
                                                                                                                                                          cross-section of Small SI engine
                                            change will not be disruptive for any                   advice and recommendations of
                                                                                                                                                          manufacturers, equipment
                                            manufacturer. We are also specifying                    representatives of small entities that
                                                                                                                                                          manufacturers, and fuel system
                                            that engines must have the same                         could be affected by this rule and to
                                                                                                                                                          component manufacturers. (The rest of
                                            number and arrangement of cylinders                     prepare a report containing the Panel’s               the companies were involved in the
                                            and approximately the same total                        recommendations for small entity                      Marine SI market.)
                                            displacement. This will help us avoid                   flexibilities based on those comments,                   With input from small entity
                                            the situation where manufacturers argue                 as well as on the Panel’s findings and                representatives, the Panel drafted a
                                            that engines with substantially different               recommendations regarding the                         report providing findings and
                                            engine blocks should be in the same                     elements of the Initial Regulatory                    recommendations to us on how to
                                            engine family. We will implement this                   Flexibility Analysis (IRFA) under                     reduce the potential burden on small
                                            provision consistent with the approach                  section 603 of the RFA. Those elements                businesses that may occur as a result of
                                            adopted by California ARB in which                      of an IRFA are:                                       the proposed rule. The Panel report is
                                            they limit engine families to include no                   • A description of, and where                      included in the rulemaking record for
                                            more than 15 percent variation in total                 feasible, an estimate of the number of                this final rule. In light of the Panel
                                            engine displacement. Similarly, the                     small entities to which the rule will                 report, and where appropriate, we
                                            current regulations in part 90 do not                   apply;                                                proposed a number of provisions for
                                            provide a clear way of distinguishing                      • A description of projected                       small business engine manufacturers
                                            engine families by cylinder dimensions                  reporting, recordkeeping, and other                   and small business equipment
                                            (bore and stroke) so we are also                        compliance requirements of the rule,                  manufacturers. We are adopting all the
                                            changing part 90 to limit the variation                 including an estimate of the classes of               flexibility options as proposed. The
                                            in displacement within an engine family                 small entities that will be subject to the            following section describes the
                                            to 15 percent. (See § 1054.230 and                      requirements and the type of                          flexibility options being adopted in this
                                            § 90.116.)                                              professional skills necessary for                     final rule.
                                               The test procedures for Small SI                     preparation of the report or record;                     (2) Burden Reduction Approaches for
                                            engines are designed for engines                           • An identification, to the extent                 Small-Volume Nonhandheld Engine
                                            operating in constant-speed                             practicable, of all relevant Federal rules            Manufacturers
                                            applications. This covers the large                     that may duplicate, overlap, or conflict                 We are incorporating several
                                            majority of affected equipment;                         with the rule; and                                    provisions for small business
                                            however, we are aware that engines                         • A description of any significant                 nonhandheld engine manufacturers.
                                            installed in some types of equipment,                   alternative to the rule that accomplishes             The purpose of these provisions is to
                                            such as small utility vehicles or go carts,             the stated objectives of applicable                   reduce the burden on companies for
                                            are not governed to operate only at a                   statutes and that minimizes any                       which fixed costs cannot be distributed
                                            single rated speed. These engines will                  significant economic impact of the rule               over a large number of engines.
                                            be certified based on their emission                    on small entities.                                       Under EPA’s current Phase 2
                                            control over the constant-speed duty                       The report of the Panel has been                   regulations, EPA provided a number of
                                            cycle even though they do not                           placed in the rulemaking record for this              provisions for small-volume engine
                                            experience constant-speed operation in                  final rule.                                           manufacturers. For the Phase 2
                                            use. We are not prepared to establish a                    In addition to EPA’s Director of the               regulations, the criteria for determining
                                            new duty cycle for these engines but we                 Office of Regulatory Management and                   if a company was a ‘‘small-volume
                                            are requiring engine manufacturers to                   Information who acted as chairperson,                 engine manufacturer’’ was based on
                                            explain how their emission control                      the Panel consisted of the Director of                whether the company projected at
                                            strategy is not a defeat device in the                  EPA’s Assessment and Standards                        certification to have production of no
                                            application for certification. For                      Division of the Office of Transportation              more than 10,000 nonhandheld engines
                                            example, if engines will routinely                      and Air Quality, the Administrator of                 per year (excluding engines sold in
                                            experience in-use operation that differs                the Office of Management and Budget’s                 California that are subject to the
                                            from the specified duty cycle for                       Office of Information and Regulatory                  California ARB standards). Based on
                                            certification, the manufacturer should                  Affairs, and the Chief Counsel for                    past experience, EPA believes that
                                            describe how the fuel-metering system                   Advocacy of the Small Business                        determining the applicability of the
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                                            responds to varying speeds and loads                    Administration.                                       provisions based on number of
                                            not represented by the duty cycle. We                      Using definitions provided by the                  employees, as compared to volume of
                                            are also requiring that engine                          Small Business Administration (SBA),                  products, can be more problematic
                                            distributors and equipment                              companies that manufacture internal-                  given the nature of the workforce in
                                            manufacturers that replace installed                    combustion engines and that employ                    terms of full-time, part-time, contract,
                                            governors must get a new certificate of                 fewer than 1,000 people are considered                overseas versus domestic, and parent

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                                            59098            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            companies. EPA believes it can avoid                    deterioration factors with this final rule.           combustion cycle, cooling system,
                                            these potential complications and still                 EPA intends to analyze emissions                      cylinder configuration, number of
                                            provide relief to nearly all small                      deterioration information that becomes                cylinders, engine class, valve location,
                                            businesses by continuing to use the                     available over the next few years to                  fuel type, aftertreatment design, and
                                            annual sales criteria for determining                   determine what deterioration factors                  useful life category. We are allowing
                                            which entities qualify as a small volume                will be appropriate for nonhandheld                   small-volume engine manufacturers to
                                            engine manufacturer under the Phase 3                   engines. This is likely to include                    group all their Small SI engines into a
                                            program. For these reasons, EPA is                      deterioration data for engines certified              single engine family for certification by
                                            retaining the current production-based                  to comply with California ARB’s Tier 3                engine class and useful life category,
                                            criteria for determining who is a small-                standards and engines certified early to              subject to good engineering judgment
                                            volume engine manufacturer and, as a                    EPA’s Phase 3 standards. Prior to the                 (see § 1054.230).
                                            result, eligible for the Phase 3                        implementation date for the Phase 3
                                                                                                                                                          (e) Hardship Provisions
                                            flexibilities described below (see                      standards, EPA will provide guidance to
                                            § 1054.801).                                            engine manufacturers specifying the                      We are also establishing two types of
                                               Based on confidential sales data                     levels of the assigned deterioration                  hardship provisions for nonhandheld
                                            provided to EPA by engine                               factors for small-volume engine                       engine manufacturers consistent with
                                            manufacturers, the 10,000 unit cut-off                  manufacturers.                                        the Panel recommendations. As has
                                            for engine manufacturers will include                                                                         been our experience with similar
                                            all the small business engine                           (b) Exemption From Production-Line                    provisions already adopted, we
                                            manufacturers currently identified using                Testing                                               anticipate that hardship mechanisms
                                            SBA’s employee-based definition. To                       We are exempting small-volume                       will be used sparingly. First, under the
                                            ensure all small businesses have access                 engine manufacturers from the                         unusual circumstances hardship
                                            to the flexibilities described below, EPA               production-line testing requirements                  provision, any manufacturer subject to
                                            is also allowing engine manufacturers                   (see § 1054.301). Therefore, small-                   the new standards may apply for
                                            exceeding the production cut-off level                  volume engine manufacturers will not                  hardship relief if circumstances outside
                                            noted above but having fewer than 1,000                 be required to perform production-line                their control cause the failure to comply
                                            employees to request treatment as a                     testing on any of their engine families.              and if failure to sell the subject engines
                                            small-volume engine manufacturer (see                                                                         or equipment or fuel system component
                                                                                                    (c) Additional Lead Time
                                            § 1054.635). In such a case, the                                                                              would have a major impact on the
                                            manufacturer will need to provide                          We are allowing small-volume engine                company’s solvency (see § 1068.245).
                                            information to EPA demonstrating that                   manufacturers to delay implementation                 An example of an unusual circumstance
                                            the manufacturer has fewer employees                    of the Phase 3 exhaust emission                       outside a manufacturer’s control may be
                                            than the 1,000 cut-off level to be                      standards for two years (see § 1054.145).             an ‘‘Act of God,’’ a fire at the
                                            approved as a small-volume engine                       Small-volume engine manufacturers                     manufacturing plant, or the unforeseen
                                            manufacturer.                                           will be required to comply with the                   shutdown of a supplier with no
                                               If a small-volume engine                             Phase 3 exhaust emission standards                    alternative available. The terms and
                                            manufacturer grows over time and                        beginning in model year 2014 for Class                time frame of the relief will depend on
                                            exceeds the production volume limit of                  I engines and model year 2013 for Class               the specific circumstances of the
                                            10,000 nonhandheld engines per year,                    II engines. Under this approach,                      company and the situation involved. As
                                            the engine manufacturer will no longer                  manufacturers will be able to apply this              part of its application for hardship, a
                                            be eligible for the small-volume                        delay to all their nonhandheld engines                company will be required to provide a
                                            flexibilities. However, because some of                 or to just a portion of their production.             compliance plan detailing when and
                                            the flexibilities described below provide               For those engine families that are                    how it will achieve compliance with the
                                            manufacturers with the ability to avoid                 certified to meet the Phase 3 standards               standards. This hardship provision will
                                            certain testing such as durability testing              prior to these delayed dates by selecting             be available to all manufacturers of
                                            or production line testing, it may be                   an FEL at or below the Phase 3                        engines, equipment, boats, and fuel
                                            difficult for a manufacturer to fully                   standards, small volume engine                        system components subject to the new
                                            comply with all the testing requirements                manufacturers can generate early Phase                standards, regardless of business size.
                                            immediately upon losing its small-                      3 credits (as discussed in Section V.C.3)                Second, an economic hardship
                                            volume status. In such cases, the engine                through the 2013 model year for Class                 provision allows small businesses
                                            manufacturer can contact EPA and                        I engines and through the 2012 model                  subject to the new standards to petition
                                            request additional time, subject to EPA                 years for Class II engines. This option               EPA for limited additional lead time to
                                            approval, before they would be required                 provides more lead time for small-                    comply with the standards (see
                                            to meet the testing requirements that                   volume engine manufacturers to                        § 1068.250). A small business must
                                            generally apply to engine                               redesign their products. They will also               make the case that it has taken all
                                            manufacturers.                                          be able to learn from some of the                     possible business, technical, and
                                                                                                    hurdles overcome by larger                            economic steps to comply, but the
                                            (a) Assigned Deterioration Factors                                                                            burden of compliance costs would have
                                               We are allowing small-volume engine                                                                        a significant impact on the company’s
                                            manufacturers to rely on an assigned                    (d) Broad Engine Families                             solvency. Hardship relief could include
                                            deterioration factor to demonstrate                       We are also allowing small-volume                   requirements for interim emission
                                            compliance with the standards for the                   engine manufacturers to use a broader                 reductions and/or the purchase and use
                                            purposes of certification rather than                   definition of engine family for                       of emission credits. The length of the
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                                            doing service accumulation and                          certification purposes. Under the                     hardship relief decided during review of
                                            additional testing to measure                           existing engine family criteria specified             the hardship application will be up to
                                            deteriorated emission levels at the end                 in the regulations, manufacturers group               one year, with the potential to extend
                                            of the regulatory useful life (see                      their various engine lines into engine                the relief as needed. We anticipate that
                                            § 1054.240). EPA is not establishing                    families that have similar design                     one to two years will normally be
                                            actual levels for the assigned                          characteristics including the                         sufficient. As part of its application for

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                                            hardship, a company will be required to                 case, the manufacturer must provide                   G. Technological Feasibility
                                            provide a compliance plan detailing                     information to EPA demonstrating that                 (1) Level of Standards
                                            when and how it will achieve                            the manufacturer has fewer employees
                                            compliance with the standards. This                     than the applicable employee cut-off                     We are promulgating new, more
                                            hardship provision will be available                    level to be approved as a small-volume                stringent exhaust HC+NOX standards for
                                            only to qualifying small businesses.                    equipment manufacturer.                               Class I and II Small SI engines. We are
                                                                                                                                                          also establishing a new CO standard for
                                            (3) Burden Reduction Approaches for                     (a) Additional Lead Time                              Small SI engines used in marine
                                            Small-Volume Nonhandheld Equipment                                                                            generator applications.
                                            Manufacturers                                              As described in Section V.E.3., EPA is                For the 2008 model year
                                               We are establishing three provisions                 implementing a transition program for                 manufacturers have certified nearly 500
                                            for small-volume nonhandheld                            all equipment manufacturers that                      Class I and II engine families to the
                                            equipment manufacturers. The purpose                    produce Class II equipment. Under that                Phase 2 standards using a variety of
                                            of these provisions is to reduce the                    program, equipment manufacturers can                  engine designs and emission control
                                            burden on companies for which fixed                     install Phase 2 engines in limited                    technology. All Class I engines were
                                            costs cannot be distributed over large                  numbers of Class II equipment over the                produced using carbureted air-fuel
                                            sales volumes. That is useful for small-                first four years the Phase 3 standards                induction systems. A small number of
                                            volume equipment manufacturers that                     apply (i.e., 2011 through 2014). The                  engines used catalyst-based emission
                                            may need more lead time to redesign                     number of equipment that can use Phase                control technology. Similarly, Class II
                                            their equipment to accommodate the                      2 engines is based on 30 percent of an                engines were predominantly carbureted.
                                            new Phase 3 engine designs.                             average annual production level of Class              A limited number of these engines used
                                               Under EPA’s current Phase 2                          II equipment. However, for small-                     catalyst technology, electronic engine
                                            regulations, EPA provided a number of                                                                         controls and fuel injection, or were
                                                                                                    volume equipment manufacturers, EPA
                                            lead time provisions for small-volume                                                                         water-cooled. In both classes, several
                                                                                                    is allowing a higher level of allowances.
                                            equipment manufacturers. For the Phase                                                                        engine families were certified at levels
                                            2 regulations, the criteria for                         Small-volume equipment manufacturers
                                                                                                                                                          that will comply with the new Phase 3
                                            determining if a company was a ‘‘small-                 can install Phase 2 engines at a level of             standards. Also, several families were
                                            volume equipment manufacturer’’ was                     200 percent of an average annual                      very close to the new emission
                                            based on whether the company                            production level of Class II equipment.               standards. This suggests that, even
                                            produced fewer than 5,000                               Small-volume equipment manufacturers                  accounting for the relative increase in
                                            nonhandheld pieces of equipment per                     can use these allowances over the same                stringency associated with the Phase 3
                                            year (excluding equipment sold in                       four year period of the transition                    requirements, some families either will
                                            California that are subject to the                      program noted above (see § 1054.625).                 not need to do anything or will require
                                            California ARB standards). For the same                 Therefore, a small-volume equipment                   only modest reductions in their
                                            reasons noted above for engine                          manufacturer could potentially use                    emission performance to meet the new
                                            manufacturers, EPA is retaining the                     Phase 2 engines on all their Class II                 standards. However, many engine
                                            current production-based criteria for                   equipment for two years, consistent                   families clearly will have to do more to
                                            determining who is a small-volume                       with the SBAR Panel’s                                 improve their emission controls.
                                            equipment manufacturer and, as a                        recommendation, or they might, for                       Based on our own testing of advanced
                                            result, eligible for the Phase 3                        example, sell half their Class II                     technology for these engines, our
                                            flexibilities described below (see                      equipment with Phase 2 engines for four               engineering assessments, and statements
                                            § 1054.801). The determination of which                 years assuming sales stay constant over               from the affected industry, we believe
                                            companies qualify as small-volume                       time.                                                 the new requirements will require many
                                            equipment manufacturers for the                                                                               engine manufacturers to adopt exhaust
                                            purposes of the flexibilities described                 (b) Simplified Certification Procedure                aftertreatment technology using catalyst-
                                            below will be based on the average                                                                            based systems. Other likely changes
                                            annual U.S.-directed production of                        We are establishing a simplified                    include improved engine designs and
                                            nonhandheld equipment over three                        engine certification procedure for all                fuel delivery systems. Finally, adding
                                            years from 2007 through 2009.                           equipment manufacturers, including                    electronic controls or fuel injection
                                               Based on estimated sales data for                    small-volume equipment manufacturers                  systems may obviate the need for
                                            equipment manufacturers, EPA believes                   (see § 1054.612). See Section V.E.4 for               catalytic aftertreatment for some engine
                                            the 5,000 unit cut-off for equipment                    further discussion of this provision.                 families, with the most likely candidates
                                            manufacturers will include almost all                                                                         being multi-cylinder engine designs.
                                            the small business equipment                            (c) Hardship Provisions
                                            manufacturers using SBA’s employee-                                                                           (2) Implementation Dates
                                                                                                      Because nonhandheld equipment
                                            based definition. However, to ensure all                manufacturers in many cases depend on                   We are establishing HC+NOX exhaust
                                            small businesses have access to the                                                                           emission standards of 10.0 g/kW-hr for
                                                                                                    engine manufacturers to supply certified
                                            flexibilities described below, EPA is                                                                         Class I engines starting in the 2012
                                                                                                    engines in time to produce complying
                                            also allowing equipment manufacturers                                                                         model year and 8.0 g/kW-hr for Class II
                                                                                                    equipment, we are also establishing a
                                            which exceed the production cut-off                                                                           engines starting in the 2011 model year.
                                            level noted above, but comply with                      hardship provision for all nonhandheld
                                                                                                                                                          For both classes of nonhandheld
                                            SBA’s employee-based definition (e.g.,                  equipment manufacturers, regardless of
                                                                                                                                                          engines, we are maintaining the existing
                                            500 employees for equipment                             size. The provision will allow an                     CO standard of 610 g/kW-hr. We expect
                                                                                                    equipment manufacturer to request
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                                            manufacturers, 750 employees for                                                                              manufacturers to meet these standards
                                            construction equipment manufacturers,                   more time if they are unable to obtain                by improving engine combustion and
                                            and 1,000 employees for generator                       a certified engine and they are not at                adding catalysts on most engines.
                                            manufacturers), to request treatment as                 fault and will face serious economic                    For spark-ignition engines used in
                                            a small-volume equipment                                hardship without an extension (see                    marine generators, we are promulgating
                                            manufacturer (see § 1054.635). In such a                § 1068.255).                                          a more stringent Phase 3 CO emission

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                                            59100            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            standard of 5.0 g/kW-hr. This will apply                Class I engines of varying displacements              exhaust system. This could potentially
                                            equally to all sizes of engines subject to              and valve-train designs. Each of these                destroy the catalyst.
                                            the Class I and II Small SI engine                      engines was equipped with a catalyst-                    One solution is simply to have a
                                            standards, with implementation dates as                 based control system and all achieved                 separate catalyst/muffler for each
                                            described above relative to Class I and                 the applicable standard at the end of                 cylinder. Another solution is to employ
                                            Class II engines.                                       their regulatory useful lives. Our work               electronic engine controls to monitor
                                                                                                    also suggests that manufacturers of Class             ignition and put the engine into ‘‘limp-
                                            (3) Technological Approaches                                                                                  mode’’ until necessary repairs are made.
                                                                                                    I engines may need to improve the
                                               Our feasibility assessment began by                  durability of their basic engine designs,             For engines using carburetors, this
                                            evaluating the emissions performance of                 ignition systems, or fuel metering                    would effectively require the addition of
                                            current technology for Small SI engines                 systems for some engines to comply                    electronic controls. For engines
                                            and equipment. These initial efforts                    with the emission regulations.                        employing electronic fuel injection that
                                            focused on developing a baseline for                       We tested five single-cylinder,                    may need to add a small catalyst, it will
                                            emissions and general engine                            overhead-valve Class II engines with                  require that the electronic controls
                                            performance so we could assess the                      prototype catalyst/muffler control                    incorporate ignition misfire detection if
                                            potential for new emission standards for                systems. Three of the engines were                    they do not already utilize the inherent
                                            engines and equipment in this category.                 carbureted and two were equipped with                 capabilities within the engine
                                            This process involved laboratory and                    electronic engine and fuel controls. This             management system.
                                            field evaluations of the current engines                latter technology improves the                           As described earlier, we also expect
                                            and equipment. We reviewed                              management of air-fuel mixtures and                   some engine families to use electronic
                                            engineering information and data on                     ignition spark timing. Each of the                    fuel injection to meet the Phase 3
                                            existing engine designs and their                       engines achieved the requisite emission               standard without employing catalytic
                                            emissions performance. Patents of                       limit for HC+NOX (i.e., 8.0 g/kW-hr).                 aftertreatment. Engine families that
                                            existing catalyst/muffler designs for                   Based on this work and information                    already use these fuel metering systems
                                            Class I engines were also reviewed. We                  from one manufacturer of emission                     and are reasonably close to complying
                                            engaged engine manufacturers and                        controls, we believe either a catalyst-               with the new requirement are likely to
                                            suppliers of emission control-related                   based system or electronic engine                     need only additional calibration
                                            engine components in discussions                        controls appear sufficient to meet the                changes to the engine management
                                            regarding recent and expected advances                  standard. Recent certification data also              system for compliance. In addition, we
                                            in emissions performance beyond that                    suggests a number of Class II engines                 expect that some engine families that
                                            required to comply with the current                     may be able to comply with the new                    currently use carbureted fuel systems
                                            Phase 2 standards. Finally, we                          standard with engine modifications                    will convert directly to electronic fuel
                                            purchased catalyst/muffler units that                   only. Finally, similar to Class I engines,            injection. Manufacturers may adopt this
                                            were already in mass production by an                   we found that manufacturers of Class II               strategy to couple achieving the
                                            engine manufacturer for use on                          engines may also need to improve the                  standard without a catalyst and
                                            European walk-behind lawn mowers                        durability of their ignition systems or               realizing other advantages of using fuel
                                            and conducted engineering and                           fuel metering systems for some engines                injection such as easier starting, more
                                            chemical analyses on the design and                     to comply with the emission                           stable and reliable engine operation, and
                                            materials of those units.                               regulations.                                          reduced fuel consumption.
                                               We used the information and                             Multi-cylinder Class II engines are                   Our evaluation of electronic fuel
                                            experience gathered in the above effort,                very similar to their single-cylinder                 injection systems that could be used to
                                            along with the previous catalyst design                 counterparts regarding engine design                  attain the new standard found that a
                                            experience of our engineering staff, to                 and combustion characteristics. There                 rather simple, low-cost system should
                                            design and build prototype catalyst-                    are no multi-cylinder Class I engines.                be sufficient. We demonstrated this
                                            based emission control systems that                     Based on these attributes and our testing             proof of concept as part of the engine
                                            were capable of effectively and safely                  of two twin-cylinder engines, we                      test program we conducted in
                                            achieving the new Phase 3 requirement                   conclude that the Phase 3 HC+NOX                      anticipation of the proposed rule. In that
                                            based on dynamometer and field testing.                 standard is technically feasible.                     program, we fitted two single-cylinder
                                            We also used the information and the                       Nonetheless, we also found that                    Class II engines with an electronic
                                            results of our engine testing to assess the             multi-cylinder engines may present a                  control unit and fuel system
                                            potential need for improvements to                      unique concern with the application of                components developed for motor-
                                            engine and fuel system designs, and the                 catalytic control technology under                    scooters and small-displacement
                                            selective use of electronic engine                      atypical operating conditions. More                   motorcycles for Asian markets. The
                                            controls and fuel injection on some                     specifically, the concern relates to the              sensors for the system were minimized
                                            engine types. A great deal of this effort               potential consequences of combustion                  to include a throttle position sensor, air
                                            was conducted in association with our                   misfire or a complete lack of                         charge temperature sensor, oil
                                            more exhaustive study regarding the                     combustion in one of the two or more                  temperature sensor, manifold absolute
                                            efficacy and safety of implementing                     cylinders when a single catalyst/muffler              pressure sensor, and a crankshaft
                                            advanced exhaust emission controls on                   design is used. A single muffler is                   position sensor. This is in contrast to
                                            Small SI engines, as well as new                        typically used in Class II applications.              the fuel injection systems currently used
                                            evaporative requirements for these                      In a single-catalyst system, the                      in some equipment with two-cylinder
                                            engines. In other testing, we evaluated                 unburned fuel and air mixture from the                Class II engine applications that employ
                                            advanced emission controls on a multi-                  malfunctioning cylinder could combine                 more sophisticated and expensive
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                                            cylinder Class II engine with electronic                with hot exhaust gases from the other,                automotive-based components.
                                            fuel injection. The results of that study               properly operating cylinder. This                        Finally, there are a number of Class II
                                            are also discussed in Section VII.                      condition can create high temperatures                engines that use gaseous fuels (i.e.,
                                               In our test program to assess the                    within the muffler system as the                      liquefied petroleum gas or natural gas).
                                            feasibility of achieving the Phase 3                    unburned fuel and air charge from the                 Based on our engineering evaluation of
                                            HC+NOX standard, we evaluated 15                        misfiring cylinder combusts within the                current and likely emission control

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                      59101

                                            technology for these engines, we                        more efficient catalysts and improved                 VI. Evaporative Emissions
                                            conclude that there are no special                      fuel induction systems. In particular,
                                                                                                                                                          A. Overview
                                            concerns relative to achieving the Phase                Chapter 4 of the Final RIA presents data
                                            3 HC+NOX standard.                                      on Class I engines with more active                      In this final rule, we are also
                                              Turning to the Phase 3 CO standard                    catalysts and on Class II engines with                establishing standards for controlling
                                            for Class I and II Small SI engines used                closed-loop control fuel injection                    evaporative emissions from fuel systems
                                            in marine generator applications, these                 systems in addition to a catalyst. In both            in marine vessels and equipment
                                            engines have several rather unique                      cases larger emission reductions were                 powered by Small SI engines. These
                                            design considerations that are relevant                 achieved.                                             new standards include requirements for
                                            to achieving the new standard. Marine                      Based on this work we considered                   controlling permeation and diurnal
                                            generator engines are designed to                       HC+NOX standards involving a 50                       emissions from marine vessels and
                                            operate for very long periods.                          percent reduction for Class I engines                 permeation and running loss emissions
                                            Manufacturers generally design the                      and a 65–70 percent reduction for Class               from Small SI equipment.
                                            engines to operate at lower loads to                                                                             Evaporative emissions refer to
                                                                                                    II engines. Chapter 11 of the Final RIA
                                            accommodate continuous operation.                                                                             hydrocarbons released into the
                                                                                                    evaluates these alternatives, including
                                            Manufacturers also design them to take                                                                        atmosphere when gasoline or other
                                                                                                    an assessment of the overall technology
                                            advantage of the cooling available from                                                                       volatile fuels escape from a fuel system.
                                                                                                    and costs of meeting more stringent
                                            the water in the lake or river where the                                                                      The primary source of evaporative
                                                                                                    standards. For Class I engines a 50
                                            boat is operating (seawater). By routing                                                                      emissions from nonroad gasoline
                                                                                                    percent reduction standard would
                                            seawater through the engine block, or                                                                         engines and equipment is known as
                                                                                                    require base engine changes not
                                            using a heat exchanger that transfers                                                                         permeation, which occurs when fuel
                                                                                                    necessarily involved with the standards
                                            heat from the engine coolant to the                                                                           penetrates the material used in the fuel
                                                                                                    we are finalizing and the use of a more
                                            seawater, manufacturers are able to                                                                           system and reaches the ambient air.
                                                                                                    active catalyst. For Class II engines this            This is especially common through
                                            maintain engine temperatures as well as                 would likely require the widespread use
                                            or better than automotive engines.                                                                            rubber and plastic fuel-system
                                                                                                    of closed-loop fuel injection systems                 components such as fuel lines and fuel
                                            Stable temperatures in the engine block                 rather than carburetors and some other
                                            make a very significant difference in                                                                         tanks. Diurnal emissions are another
                                                                                                    engine upgrades in addition to the use                important source of evaporative
                                            engine operation, enabling much less                    of three-way catalysts.
                                            distortion of the cylinders and a much                                                                        emissions. Diurnal emissions occur as
                                                                                                       We believe it is not appropriate at this           the fuel heats up due to increases in
                                            more consistent combustion event.
                                                                                                    time to adopt more stringent exhaust                  ambient temperature. As the fuel heats,
                                            These operating characteristics make it
                                                                                                    emission standards for Small SI engines.              liquid fuel evaporates into the vapor
                                            possible to introduce advanced
                                                                                                    Our key concern is lead time. More                    space inside the tank. In a sealed tank,
                                            technology for controlling emissions.
                                            Manufacturers also use this cooling                     stringent standards will require three to             these vapors will increase the pressure
                                            water in a jacketing system around the                  five years of lead time beyond the 2011               inside the tank; however, most tanks are
                                            exhaust in order to minimize surface                    model year start date we are allowing                 vented to prevent this pressure buildup.
                                            temperatures and reduce the risk of fires               for the program contained in this final               The evaporating fuel therefore drives
                                            on boats.                                               rule. We believe it will be more effective            vapors out of the tank into the
                                              The vast majority of gasoline marine                  to implement the new Phase 3 standards                atmosphere. Running loss emissions are
                                            generators are produced by two engine                   to achieve near-term emission                         similar to diurnal emissions except that
                                            manufacturers. Recently, these two                      reductions needed to reduce ozone                     vapors escape the fuel tank as a result
                                            manufacturers have converted their                      precursor emissions and to minimize                   of heating from the engine or some other
                                            marine generator product lines to new                   growth in the Small SI exhaust                        source of heat during operation rather
                                            designs which can reduce CO emissions                   emissions inventory in the post 2010                  than from normal daily temperature
                                            by more than 99 percent. These                          time frame. More efficient catalysts,                 changes.
                                            manufacturers stated that this action is                engine improvements, and closed-loop                     Other sources of evaporative
                                            to reduce the risk of CO poisoning in                   electronic fuel injection could be the                emissions include diffusion and
                                            response to demands from boat builders.                 basis for more stringent Phase 4                      refueling. Diffusion emissions occur
                                            These low-CO emission designs use                       emission standards at some point in the               when vapor escapes the fuel tank
                                            closed-loop electronic fuel injection and               future.                                               through an opening as a result of
                                            catalytic control. Both of these                                                                              random molecular motion, independent
                                                                                                    (5) Our Conclusions
                                            manufacturers have certified low-CO                                                                           of changing temperature. Although we
                                            engines capable of complying with the                      We believe the Phase 3 exhaust                     are not adopting a specific standard for
                                            new standards. These manufacturers                      emission standards for nonhandheld                    diffusion emissions, we expect that
                                            also use electronic controls to monitor                 Small SI engines will achieve significant             these emissions will be controlled
                                            catalyst function.                                      emission reductions. Manufacturers will               through the running loss and diurnal
                                                                                                    likely meet the new standards with a                  emission controls. Refueling losses are
                                            (4) Consideration of Regulatory                         variety of strategies including catalysts             vapors that are displaced from the fuel
                                            Alternatives                                            packaged in mufflers, engine                          tank to the atmosphere when someone
                                              In developing the final emission                      modifications, and fuel-injection                     fills a fuel tank. Refueling spitback is
                                            standards, we considered what was                       systems. Test data from readily available             the spattering of liquid fuel droplets
                                            achievable with catalyst technology.                    technologies have demonstrated the                    coming out of the filler neck during a
                                            Our technology assessment work                          feasibility of achieving the new                      refueling event. Spillage is fuel that is
                                                                                                    emission levels.
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                                            indicated that the new emission                                                                               spilled while refueling. We are
                                            standards are feasible in the context of                   As discussed in Section VII, we                    continuing to work with manufacturers
                                            provisions for establishing emission                    believe the new standards will have no                to develop industry standards for
                                            standards prescribed in section 213 of                  negative effects on energy, noise, or                 refueling emission control, and we are
                                            the Clean Air Act. We also considered                   safety and may lead to some positive                  adopting a requirement that
                                            what could be achieved with larger,                     effects.                                              manufacturers use fuel system designs

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                                            59102            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            that will help facilitate a reduction in                designed to prevent liquid fuel from                  positioned to apply emission control
                                            fuel spillage.                                          standing in the fill neck, the fill neck              technologies and demonstrate
                                                                                                    will be considered a vapor line and not               compliance. Equipment manufacturers
                                            B. Fuel Systems Covered by This Rule
                                                                                                    subject to the new fuel line permeation               and boat builders will then be able to
                                               The new evaporative emission                         standard.                                             purchase certified fuel-system
                                            standards will apply to fuel systems for                  A special note applies to fuel systems              components rather than doing all their
                                            both Small SI engines and Marine SI                     for auxiliary marine engines. These                   own testing on individual components
                                            engines. The marine standards apply to                  engines must meet exhaust emission                    or whole systems to demonstrate
                                            fuel systems related to both propulsion                 standards that apply to land-based                    compliance with every requirement. In
                                            and auxiliary engines. In some cases,                   engines. For evaporative emissions,                   contrast, controlling running loss
                                            specific standards are required only for                however, it is important that the fuel                emissions cannot be done on a
                                            certain types of equipment, as described                systems for propulsion and auxiliary                  component basis so we are requiring
                                            below. These standards will apply only                  engines be subject to the same standards              engine or equipment manufacturers to
                                            to new products.                                        because these engines typically draw                  certify that they meet the running loss
                                               We are incorporating the regulations                 fuel from a common fuel tank and share                standard. We will otherwise expect
                                            related to evaporative emission                         other fuel-system components. We are                  most equipment manufacturers to
                                            standards in 40 CFR part 1060, as                       therefore applying the Marine SI                      simply identify a range of certified
                                            described in Section VI.C. Also, as                     evaporative emission standards and                    components and install the components
                                            described in Section VIII, we are                       certification requirements to the fuel                as directed by the component
                                            allowing component manufacturers and                    systems for both auxiliary and                        manufacturer to demonstrate
                                            some equipment manufacturers to                         propulsion marine engines on marine                   compliance with the final emission
                                            certify products under the provisions of                vessels. We apply a similar approach for              standards.
                                            part 1060 with respect to recreational                  nonroad engines installed in motor                       Second, a great deal of diversity exists
                                            vehicles and Large SI engine. We have                   vehicles (such as generators used to                  in fuel-system designs (hose lengths,
                                            also adopted requirements for                           power motor homes). These engines                     tank sizes/shapes, number of
                                            controlling evaporative emissions from                  must meet exhaust emission standards                  connections, etc.). In most cases, the
                                            marine compression-ignition engines                     for nonroad engines, but the evaporative              specific equipment types are low-
                                            that operate on volatile liquid fuels                   requirements apply under the motor-                   volume production runs so sales will
                                            (such as methanol or ethanol). Now that                 vehicle program.                                      not be large enough to cover the expense
                                            we are adopting final requirements in                     Our evaporative emission standards                  of SHED-type testing. Third, there are
                                            part 1060, we are including a reference                 for automotive applications are based on              similarities in fuel lines and tanks that
                                            to part 1060 for these marine                           a comprehensive measurement from the                  allow for component data to be used
                                            compression-ignition engines.                           whole vehicle. However, the                           broadly across products in spite of
                                               The following definitions are                        evaporative standards in this final rule              extensive variety in the geometry and
                                            important in establishing which                         are generally based on individual fuel-               design of fuel systems. Fourth, many
                                            components are covered by the new                       system components. For instance, we                   equipment types, primarily boats, will
                                            standards: ‘‘evaporative,’’ ‘‘fuel system,’’            are promulgating permeation standards                 not fit in standard-size SHEDs and will
                                            ‘‘fuel line,’’ ‘‘portable nonroad fuel                  for fuel lines and fuel tanks rather than             require the development of very large,
                                            tank,’’ and ‘‘installed marine fuel tank.’’             for the equipment as a whole.98 We have               very expensive test facilities if the entire
                                            See the full text of these definitions in               taken this approach for several reasons.              vessel were tested.
                                            the final regulations at § 1060.801.                    First, most production of Small SI                       Finally, by adopting separate
                                               Note in particular that the new                      equipment and Marine SI vessels is not                standards for fuel line permeation, fuel
                                            standards will apply to fuel lines,                                                                           tank permeation, diurnal emissions, and
                                                                                                    vertically integrated. In other words, the
                                            including hose or tubing that contains                                                                        running loss emissions, we are able to
                                                                                                    fuel line manufacturer, the engine
                                            liquid fuel. This includes fuel supply                                                                        include simplified certification
                                                                                                    manufacturer, the fuel tank
                                            lines but not vapor lines or vent lines                                                                       requirements without affecting the level
                                                                                                    manufacturer, and the equipment
                                            that are not normally exposed to liquid                                                                       of the standards. Specifying a
                                                                                                    manufacturer are typically separate
                                            fuel. We consider fuel return lines for                                                                       comprehensive test with a single
                                                                                                    companies. In addition, there are several
                                            handheld engines to be vapor lines, not                                                                       standard for all types of evaporative
                                                                                                    hundred equipment manufacturers and
                                            fuel lines. Data in Chapter 5 of the Final                                                                    emissions will make it difficult or
                                                                                                    boat builders, many of which are small
                                            RIA suggest that permeation rates                                                                             impossible to rely on design-based
                                                                                                    businesses. Testing the systems as a
                                            through vapor lines and vent lines are                                                                        certification. Requiring emission tests to
                                                                                                    whole will place the entire certification
                                            already lower than the new standard;                                                                          cover the wide range of equipment
                                                                                                    burden on the equipment manufacturers
                                            this is due to the low vapor                                                                                  models would greatly increase the cost
                                                                                                    and boat builders. Specifying emission
                                            concentration in the vapor line. In                                                                           of compliance with little or no increase
                                                                                                    standards and testing for individual
                                            contrast, permeation rates for materials                                                                      in the effectiveness of the certification
                                                                                                    components allows for measurements
                                            that are consistently exposed to                                                                              program. We believe the approach being
                                                                                                    that are narrowly focused on the source
                                            saturated fuel vapor are generally                                                                            adopted will allow substantial
                                                                                                    of emissions and on the technology
                                            considered to be about the same as that                                                                       opportunities for market forces to
                                                                                                    changes for controlling emissions. This
                                            for liquid fuel. The new standards also                                                                       appropriately divide compliance
                                                                                                    correspondingly allows for component
                                            do not apply to primer bulbs exposed to                                                                       responsibilities among affected
                                                                                                    manufacturers to certify that their
                                            liquid fuel only for priming, but would                                                                       manufacturers and accordingly result in
                                                                                                    products meet applicable standards. We
                                            apply to primer bulbs that are directly                                                                       an effective compliance program at the
                                                                                                    believe it is most appropriate for
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                                            in the fuel supply line. This standard                                                                        lowest possible cost to society.
                                                                                                    component manufacturers to certify
                                            will apply to marine filler necks that are                                                                       The new emission standards generally
                                                                                                    their products since they are best
                                            filled or partially filled with liquid fuel                                                                   apply to the particular engines and their
                                            after a refueling event where the                         98 An exception to component certification is the   associated fuel systems. However, for
                                            operator fills the tank as full as possible.            design standard for controlling running loss          ease of reference, we may refer to
                                            In the case where the fuel system is                    emissions.                                            evaporative standards as being related to

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                                                             Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations                                        59103

                                            Small SI equipment or Marine SI                          materials and how they may degrade in                permeation over a 24-hour period
                                            vessels, meaning the relevant                            the field such that they have excessively            divided by the inside surface area of the
                                            evaporative standards for engines and                    high permeation rates but without                    fuel line. This is consistent with the
                                            fuel systems used in such equipment or                   leaking liquid fuel. Therefore, we are               standard we adopted for fuel lines in
                                            vessels.99 See Section VI.F for a more                   adopting a shorter useful life of two                recreational vehicles.
                                            detailed description of certification                    years for fuel lines used on cold-weather               The move toward low-permeation fuel
                                            responsibilities for all the new                         products through the 2013 model year                 lines in recreational vehicles—and
                                            evaporative standards.                                   to allow manufacturers to gain                       further development work in this area
                                                                                                     experience in use (see § 1054.145).                  since the first proposed rule for marine
                                            C. Final Evaporative Emission                                                                                 evaporative emissions—demonstrates
                                                                                                     Manufacturers have noted that they plan
                                            Standards                                                                                                     that low-permeation fuel lines are
                                                                                                     to gather in-use data on the permeation
                                               We are establishing permeation                        levels of cold-weather equipment. While              available on the market today for Small
                                            standards for Small SI equipment and                     we believe manufacturers will be able to             SI equipment and Marine SI vessels. In
                                            Marine SI vessels, covering permeation                   design and produce cold-weather                      addition, many manufacturers are
                                            from fuel tanks and fuel lines. We are                   products that comply with fuel line                  already using low-permeation
                                            also adopting diurnal emission                           permeation requirements for five years,              technologies in response to permeation
                                            standards for Marine SI vessels. In                      we will review any industry-generated                standards in California. We are therefore
                                            addition, we are promulgating a running                  data on in-use fuel lines. Should the                requiring that this standard apply
                                            loss standard for nonhandheld Small SI                   data demonstrate concerns with regard                beginning January 1, 2009 for Marine SI
                                            equipment (except wintertime engines),                   to in-use durability, we would consider              vessels and for nonhandheld Small SI
                                            with a variety of specified options for                  options for addressing those concerns.               equipment. Manufacturers have
                                            manufacturers to demonstrate                                The new requirements for evaporative              expressed concern that these early dates
                                            compliance.                                              emissions are described in 40 CFR part               may cause them to have to transition to
                                               All the new evaporative emission                      1060, with some category-specific                    using new hose designs before they can
                                            standards apply to new equipment over                    provisions in 40 CFR parts 1045 and                  use up their existing inventory. Under
                                            a useful life period in years that matches               1054, which are referred to as the                   the provisions of § 1060.601(g),
                                            the useful life of the corresponding                     exhaust standard-setting parts for each              manufacturers would be able to use up
                                            engine (generally five or ten years).                    category of engine. The regulations in 40            existing inventory under normal
                                            Manufacturers have expressed concern                     CFR parts 1045 and 1054 highlight the                business practices, even beyond the
                                            that they will not have time to gain five                standards that apply and provide any                 standard date. However, manufacturers
                                            years of in-use experience on low-                       specific directions in applying the                  would not be permitted to circumvent
                                            permeation fuel tanks by the effective                   general provisions in part 1060. The                 the standards by stockpiling
                                            dates of the tank permeation standards.                  standards, test procedures, and                      noncompliant hose prior to the
                                            Unlike barrier fuel line, which is well                  certification provisions are almost                  implementation of the standards.
                                            established technology, some fuel tanks                  completely uniform across our programs                  For handheld equipment, we are
                                            may use barrier technologies that have                   so this combined set of evaporative-                 promulgating a fuel line permeation
                                            not been used extensively in other                       related provisions makes it much easier              implementation date of 2012, except
                                            applications. An example of this                         for companies to certify their products              that small-volume emission families as
                                            technology will be barrier surface                       if they are not subject to the exhaust               defined in § 1054.801 will have until
                                            treatments that must be properly                         emission standards.                                  2013. Although low-permeation fuel
                                            matched to the fuel tank material.                          The rest of this section summarizes               line technology is available, handheld
                                            Therefore, we are finalizing a shorter                   the new standards, additional                        equipment is not currently subject to
                                            useful life of two years for Marine SI                   requirements, and implementation                     fuel line permeation requirements in
                                            and Small SI fuel tanks through the                      dates. Unless otherwise stated,                      California and does not typically use
                                            2013 model year to allow manufacturers                   implementation dates specified below                 low-permeation fuel lines today. In
                                            to gain experience in use (see                           refer to the model year. Section VI.D                addition, much of the fuel line used on
                                            §§ 1045.145 and 1054.145).                               describes how manufacturers may use                  handheld equipment is not straight-run
                                               Handheld manufacturers have also                      emission credits to meet fuel tank                   fuel line for which low-permeation
                                            expressed concerns about the durability                  permeation standards. Section VI.E                   replacements are readily available; thus,
                                            of fuel lines used on cold-weather                       describes the test procedures                        more lead time is required.
                                            products. As noted below, we are                         corresponding to each standard. Section                 Fuel line manufacturers have the
                                            adopting a separate fuel line                            VI.F describes how component and                     primary responsibility to certify to the
                                            requirement for cold-weather products.                   equipment manufacturers certify their                new emission standard. Equipment
                                            The manufacturers’ concerns are similar                  products and how their responsibilities              manufacturers may make arrangements
                                            to those noted in Section VI.C.2 below                   overlap in some cases. Section VI.F also             to take on the certification responsibility
                                            regarding fuel cap gasket/O-ring                         describes the simplified process of                  if they find that to be to their advantage.
                                                                                                     design-based certification for meeting               If equipment manufacturers notify the
                                               99 ‘‘Small SI equipment’’ includes all nonroad
                                                                                                     many of the new standards.                           fuel line manufacturer in writing that
                                            equipment powered by Small SI engines. ‘‘Marine
                                            SI vessels’’ includes all vessels powered by engines
                                                                                                                                                          they commit to certifying the fuel line,
                                                                                                     (1) Fuel Line Permeation Standards and               then the fuel line manufacturer may
                                            that run on volatile liquid fuels. In almost all cases
                                            these engines are powered by gasoline. Note also
                                                                                                     Dates                                                ship uncertified and unlabeled fuel line
                                            that volatile liquid fuels include methanol or              Except as noted below, the new fuel               to the equipment manufacturer.
                                            ethanol, which could be used in a compression-
                                            ignition engine. While we are aware of no such
                                                                                                     line permeation standard is 15 g/m2/day                 By specifying standards for fuel-
                                                                                                     at 23 °C using a test fuel containing 10
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                                            equipment or vessels today, they will be covered by                                                           system components rather than the
                                            the final regulations. In this preamble, we              percent ethanol and applies to fuel lines            entire fuel system, we are separately
                                            nevertheless refer to all the vessels that fall within   intended for use in new Small SI                     addressing appropriate requirements for
                                            the scope of the final regulations as Marine SI
                                            vessels. Throughout this section, we generally refer
                                                                                                     equipment and Marine SI vessels (see                 fuel line fittings that are exposed to
                                            to Small SI equipment and Marine SI vessels as           § 1060.102 and § 1060.515). The form of              liquid fuel but are not part of the fuel
                                            ‘‘equipment,’’ consistent with the regulatory text.      the standard refers to grams of                      line. We are requiring that these fuel

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                                            59104            Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Rules and Regulations

                                            line fittings meet the broad                            for cold-weather products, we are                     intended for use in new Small SI
                                            specifications described in                             adopting a set of declining fuel line                 equipment and Marine SI vessels based
                                            § 1060.101(f), which generally require                  permeation standards for fuel lines used              on the permeation rate of gasoline
                                            that fittings and connections be                        in cold-weather equipment that would                  containing 10 percent ethanol at a test
                                            designed to prevent leaks. As described                 phase-in from 2012 to 2016. The                       temperature of 28 °C (see § 1060.103 and
                                            in Section VI.E.1, we are allowing the                  standard starts at 290 g/m2/day in 2012               § 1060.520). The emission standard is
                                            fuel line assembly to be tested as a                    and declines to 275 g/m2/day in 2013,                 based on the inside surface area of the
                                            single unit. This includes connecting                   260 g/m2/day in 2014, and 245 g/m2/day                fuel tank and is consistent with that
                                            pieces, primer bulbs, and other fuel line               in 2015. The standard for 2016 and later              adopted for fuel tanks in recreational
                                            components as a single item (see                        model years is 225 g/m2/day. The                      vehicles.
                                            § 1060.102). For example, manufacturers                 standards would apply to all cold-                       Many Small SI equipment
                                            may certify fuel lines for portable                     weather products, including small-                    manufacturers are currently using low-
                                            marine fuel tanks as assemblies of fuel                 volume families. Manufacturers would                  permeation fuel tanks for products
                                            line, primer bulbs, and self-sealing end                be allowed to demonstrate compliance                  certified in California. The California
                                            connections. Finally, we are requiring                  with the 2012 through 2015 standards                  tank permeation test procedures use a
                                            that detachable fuel lines be self-sealing              with a fuel line averaging program that               nominal test temperature of 40 °C with
                                            when they are removed from the fuel                     is limited to cold-weather fuel lines.                California certification gasoline while
                                            tank or the engine because this will                    There would not be any banking or                     we are requiring testing at 28 °C with
                                            otherwise result in high evaporative                    trading of these credits. Manufacturers               gasoline containing 10 percent ethanol.
                                            emissions (see § 1060.101). To the                      comply with the averaging standard by                 We are allowing manufacturers the
                                            extent that equipment manufacturers                     naming a Family Emission Limit for                    alternative of testing their fuel tanks at
                                            and boat builders certify their products,               each family of fuel lines; this Family                40 °C with the EPA test fuel. Because
                                            they will need to describe how they                     Emission Limit serves as the emission                 permeation increases as a function of
                                            meet the equipment-based requirements                   standard for the family. Manufacturers                temperature, we are establishing an
                                            in § 1060.101(f) in their application for               may not name a Family Emission Limit                  alternative standard of 2.5 g/m2/day for
                                            certification (see § 1060.202). If boat                 higher than 400 g/m2/day during this                  fuel tanks tested at 40 °C.
                                            builders rely on certified components                   period. Beginning in the 2016 model                      We consider three distinct classes of
                                            instead of certifying, they will need to                year, all fuel lines on cold-weather                  marine fuel tanks: (1) Portable marine
                                            keep records describing how they meet                   equipment must meet the 225 g/m2/day                  fuel tanks (generally used with small
                                            the equipment-based requirements                        standard without averaging.                           outboard engines); (2) personal
                                            contained in § 1060.101(f) (see                            Outboard engine manufacturers have                 watercraft (PWC) fuel tanks; and (3)
                                            § 1060.210).                                            expressed concern that it will be                     other installed marine fuel tanks
                                               Handheld equipment manufacturers                     difficult for them to meet final 2009 date            (generally used with SD/I engines and
                                            have raised concerns that fuel lines                    for the sections of fuel lines that are               larger outboard engines). The fuel tank
                                            constructed of available low-permeation                 mounted on their engines under the                    permeation standards start in 2011 for
                                            materials may not perform well in some                  engine cowl. While some sections of                   all Small SI equipment using Class II
                                            handheld applications under extreme                     straight-run fuel line are used with                  engines and for personal watercraft and
                                            cold weather conditions such as below                   outboard engines, many of the smaller                 portable marine fuel tanks. For Small SI
                                            ¥30 °C. These products often use                        sections between engine mounted fuel-                 equipment using Class I engines and for
                                            injected molded fuel lines with complex                 system components and connectors are                  other installed marine fuel tanks
                                            shapes and designs needed to address                    preformed or injection-molded parts.                  (including engine-mounted tanks), we
                                            the unique equipment packaging issues                   Outboard engine manufacturers stated                  are applying the same standard starting
                                            and the high vibration and random                       that they will need additional time to                in 2012. Most of the marine fuel tanks
                                            movement of the fuel lines within the                   redesign and perform testing on low-                  with the later standards are produced in
                                            overall equipment when in use.                          permeation under-cowl fuel lines. To                  low volumes using rotation-molded
                                            Industry has expressed concern and the                  address this issue, we are finalizing a               cross-link polyethylene or fiberglass
                                            data in Chapter 5 of the Final RIA                      phase-in of under-cowl fuel line                      construction, both of which generally
                                            suggest that durability issues may occur                permeation standards. For each engine                 present a greater design challenge. We
                                            from using certain low-permeation                       model, we are adopting a phase-in, by                 believe the additional lead time is
                                            materials in these applications when the                hose length, of 30 percent in 2010, 60                necessary for these fuel tanks to allow
                                            weather is extremely cold and that these                percent in 2011, 90 percent in 2012–                  for a smooth transition to low-
                                            could lead to unexpected fuel line leaks.               2014 and 100 percent in 2015 and later.               permeation designs. For Small SI
                                            Cold-weather equipment is limited to                    This will allow manufacturers to                      equipment, these dates also align with
                                            the following type