[Federal Register Volume 70, Number 113 (Tuesday, June 14, 2005)]
[Rules and Regulations]
[Pages 34594-34626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11470]
[[Page 34593]]
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Part III
Environmental Protection Agency
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40 CFR Parts 9 and 86
Control of Emissions of Air Pollution From New Motor Vehicles: In-Use
Testing for Heavy-Duty Diesel Engines and Vehicles; Final Rule
Federal Register / Vol. 70, No. 113 / Tuesday, June 14, 2005 / Rules
and Regulations
[[Page 34594]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 86
[OAR-2004-0072; AMS-FRL-7922-4]
RIN 2060-AM17
Control of Emissions of Air Pollution From New Motor Vehicles:
In-Use Testing for Heavy-Duty Diesel Engines and Vehicles
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: We are establishing a manufacturer-run, in-use emissions
testing program for 2007 and later model year heavy-duty diesel
vehicles. The ground-breaking in-use test program will require engine
manufacturers to measure exhaust emissions from their diesel engines
using portable emissions measurement systems. Also for the first time,
all manufacturers will be regularly providing EPA with a significant
quantity of emissions data generated from engines used in regular
service, which EPA will evaluate to ensure the engines comply with
specified emissions requirements. The rule is a result of an agreement
between EPA and the Engine Manufacturers Association. This rule
advances EPA's clean diesel activities by helping to ensure that the
benefits of more stringent emission standards are realized under real-
world driving conditions.
DATES: This final rule is effective August 15, 2005.
The incorporation by reference of certain publications listed in
this regulation is approved by the Director of the Federal Register as
of August 15, 2005.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. OAR-2004-0074. All documents in the docket are listed in the
EDOCKET index at http://www.epa.gov/edocket. This rule relies in part
on information related to our November 2002 final rule, which can be
found in Public Docket A-2000-01. This docket is incorporated by
reference into the docket for this action. Although listed in the
index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
EDOCKET or in hard copy at the Air Docket in the EPA Docket Center,
EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: U.S. EPA, Office of Transportation and
Air Quality, Assessment and Standards Division hotline at (734) 214-
4636 or [email protected]., or alternatively Carol Connell (734) 214-4349
or [email protected]
SUPPLEMENTARY INFORMATION:
Regulated Entities
This action will affect you if you produce or import new heavy-duty
diesel engines which are intended for use in highway vehicles such as
trucks and buses, or produce or import such highway vehicles, or
convert heavy-duty vehicles or heavy-duty engines used in highway
vehicles to use alternative fuels.
The following table gives some examples of entities that are likely
to be affected by these regulations:
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Examples of potentially regulated
Category NAICS codes \a\ SIC codes \b\ entities
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Industry................................. 336112 3711 Engine and Truck Manufacturers.
336120
Industry................................. 811112 7533 Commercial Importers of Vehicles
811198 7549 and Vehicle Components.
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\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.
This list is not intended to be exhaustive, but rather provides a
guide regarding entities likely to be regulated by this action. To
determine whether particular activities may be regulated by this
action, you should carefully examine the regulations. You may direct
questions regarding the applicability of this action to the person
listed in ``FOR FURTHER INFORMATION CONTACT.''
B. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. OAR-2004-0074. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Documents in the official
public docket are listed in the index list in EPA's electronic public
docket and comment system, EDOCKET. Documents may be available either
electronically or in hard copy. Electronic documents may be viewed
through EDOCKET. Hard copy documents may be viewed at the EPA Docket
Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. Docket in The EPA Docket Center Public Reading Room is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744.
This rule relies in part on information related to our November
2002 final rule, which can be found in Public Docket A-2000-01. This
docket is incorporated by reference into the docket for this action,
OAR-2004-0074.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/ Or you can go to the federal-
wide eRulemaking site at www.regulations.gov.
An electronic version of the public docket is available through
EDOCKET. You may use EDOCKET at http://www.epa.gov/edocket/ to view
public comments, access the index listing of the contents of the
official public docket, and to access those documents in the public
docket that are available electronically. Once in the system, select
``search,'' then key in the appropriate docket identification number.
Outline of This Preamble
I. Overview
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A. Summary of the Rule
B. Background on the Origins of This Rule
C. Historical Context
1. Genesis and Description of NTE Standards
2. Current EPA In-Use NTE Testing
3. Plans for Nonroad Diesel Engine In-Use NTE Testing
D. California's Intent to Adopt an In-Use NTE Test Program
II. Details of the Rule
A. Applicability
B. Engine Family Selection
1. Number of Engine Families
2. Treatment of Nonconforming Engine Families
3. Small or Unavailable Engine Families
4. Engine Families Unsuitable for Testing
C. Phase 1 Testing Scheme
1. Focus of Initial Testing
2. Engine Family Evaluation Criteria and Outcomes
D. Phase 2 Testing Scheme
1. Initiation and Focus of Additional Testing
2. Number of Engines and Test Conditions
E. Vehicle Pass Criteria
F. NTE Threshold Specification
1. Not-to-Exceed Standards
2. Existing In-Use Compliance Margins
3. New In-use Measurement Margin for Portable Measurement
Systems
i. Pilot Program Accuracy Margins
ii. Final Program Accuracy Margins
G. Considerations in Deciding on Remedial Action
1. Manufacturers' Supplemental Information
2. EPA's Testing and Supplemental Data
3. Other Information
H. Quantity of Data Collected
I. Screening, Adjustment, and Mileage and of Test Vehicles
J. Test Conditions
K. Reporting Requirements
1. Comprehensive In-Use Testing Reports
2. Notification of Vehicle Failures
3. Carve Outs, Deficiencies, or Other NTE Control Area
Exclusions
4. Incomplete, Invalid, or Voluntary Tests
L. Measurement of Emission
1. Pollutants and Other Emissions
2. Portable Emission Measurement Systems--Status and
Availability
3. Measurement Accuracy Margin Development Program
M. Pilot Program
N. Public Availability of In-Use Testing Data
O. Implications for Other EPA Programs
1. EPA Testing and Supplemental Information
2. Selective Enforcement Audit (SEA) Testing
3. Deterioration Factor (DF) Testing
P. Limitations of Warranty Claims
III. Economic Impact
IV. Public Participation
V. Statutory and Executive Order Review
VI. Statutory Provisions and Legal Authority
I. Overview
This section summarizes the manufacturer-run, in-use Not-to-Exceed
(NTE) testing program for on-highway, heavy-duty diesel vehicles and
engines. It also contains background on the genesis of the rule, an
overview of the origin and application of EPA's NTE emission standards,
and a brief description of our ongoing in-use NTE. More detailed
information on the NTE standards for heavy-duty diesel engines is
contained in section II. F. 1. of this preamble.
A. Summary of the Rule
We are establishing a manufacturer-run, in-use NTE testing program
for vehicles with heavy-duty diesel engines, beginning in calendar year
2005. The entire program is being adopted largely as we proposed in the
Federal Register on June 10, 2004 (69 FR 32804) and June 21, 2004 (69
FR 34326). There will be a pilot program in calendar years 2005 and
2006 for gaseous pollutants (i.e., nonmethane hydrocarbons (NMHC),
carbon monoxide (CO), and oxides of nitrogen (NOX)). In
calendar years 2006 and 2007, there will be a pilot program for
particulate matter (PM). Subsequent to these programs, the fully
enforceable in-use test program begins. Therefore, the enforceable
program starts in 2007 for gaseous pollutants and 2008 for PM. In those
years, the test program will apply to 2007 and later model year
engines.
This testing program addresses a long standing need to monitor the
emissions performance of the engines installed in these on-highway
vehicles when they are operated under a wide range of real world
conditions. It is specifically intended to monitor compliance with the
NTE exhaust emission standards and to help ensure that heavy-duty
diesel engines will comply with all applicable emission standards
(e.g., including those based on the Federal Test Procedure (FTP))
throughout their useful lives. Background on our NTE standards is
presented in sections I. B. and C. of this Preamble.
The new testing program will, for the first time, require engine
manufacturers to assess in-use exhaust emissions from heavy-duty diesel
vehicles using onboard, portable emission measurement systems during
typical operation on the road. Previously, engine emissions testing
involved removing the engine from the vehicle and testing the engine in
a laboratory on an engine dynamometer. Starting in the mid-1990s, EPA
facilitated research into portable systems by developing and using
prototype systems on a more limited basis in its compliance programs.
Vehicles were instrumented with portable systems to measure their
emissions performance during real-world operating conditions. It became
clear that these systems offered advantages over conventional
approaches to assess in-use exhaust emissions from engines for design
improvement, research, modeling, and compliance purposes.
Under the program, we will designate a certain number of heavy-duty
diesel engine families for testing. Generally, no more than 25 percent
of a manufacturer's engine families would be designated in any single
year. We expect manufacturers will use their existing customer
relationships and create new lines of communication with customers to
recruit appropriate test vehicles from fleets or individual owners.
Each selected vehicle will be equipped with a portable emission
measurement system and driven by its normal operator, with a normal
payload, over its regular driving route. All data and test results will
be reported to EPA on a regular basis. The manufacturer of a designated
heavy-duty engine family will pay for all of the expenses associated
with the planning, vehicle procurement, testing, and data reporting.
The test program is composed of two phases. In the first phase of
testing (Phase 1) the manufacturer will test a minimum of five and a
maximum of 10 vehicles per engine family selected for testing. If five
out of the first five vehicles, or five out of the first six vehicles
pass a specified vehicle pass criteria, or vehicle testing criteria, no
further testing or other data relating to that diesel engine family
will be required from the manufacturer that year. However, we may
choose that engine family for testing again in a later year. If the
above conditions are not met, then a total of 10 vehicles will be
tested in Phase 1. If eight out of the 10 vehicles pass the vehicle
testing criteria, no further testing or other data relating to that
diesel engine family will be required from the manufacturer for that
year.
In all other cases, we will decide on a course of action depending
on the number of vehicles from the designated engine family that fail
to pass the vehicle testing criteria and other factors. In making our
decision, we will thoroughly review the test results, consult with the
engine manufacturer, allow the manufacturer to provide additional data,
and consider other pertinent information. The action may include, but
is not limited to, one of the following:
1. No further action because no significant nonconformance issues
are indicated;
2. Initiate the second phase of testing (Phase 2); or
3. Seek some form of remedial action.
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If five or fewer of the Phase 1 test vehicles satisfy the vehicle
pass criteria, EPA may require the manufacturer to conduct Phase 2
testing. If only six or seven of the Phase 1 test vehicles pass the
vehicle pass criteria, EPA may require the manufacturer to conduct
Phase 2 testing under these regulations if the manufacturer agrees to
perform such testing. However, if Phase 2 testing is conducted for any
reason, even if the manufacturer elects to pursue the next phase of
testing voluntarily, we may direct that up to 10 additional vehicles be
tested. In this phase, we may also focus testing on one or more engine
configurations within the engine family. Additionally, we may specify
certain driving routes or other driving conditions (e.g., geographic
conditions or time of year). The purpose of these additional
specifications is to better understand how widespread or under what
conditions the Phase 1 test vehicles are failing to pass the vehicle
pass criteria. In those instances, the specifications would be based on
the Phase 1 test conditions that indicated a potential nonconformity.
As with Phase 1 testing, any remedial action we may choose to
pursue based on Phase 2 testing will be made only after a thorough
review of the test results, consultation with the engine manufacturer,
and consideration of other pertinent information.
The in-use testing program is primarily designed as an information-
gathering process that will inform EPA's decision-making. The results
of in-use testing for any particular engine family will not necessarily
lead to, or necessarily insulate an engine family from, appropriate
remedial actions, depending on the particular results of the testing
and other information in EPA's possession. However, EPA believes that
the results of the in-use testing and information gathered by the
program will be a critical resource for EPA in determining how to
direct our limited resources.
We expect that the wealth of in-use test data generated by the
program will have a number of valuable uses in addition to monitoring
heavy-duty diesel engines for NTE compliance purposes under the
program. For example, though EPA would not engage in routine NTE
testing of engines or engine families that satisfy the Phase 1 test
criteria unless new information indicates that a nonconformity exists,
we may use the in-use data along with other information to make
independent evaluations about the possible need to pursue further
testing or actions. We may also use the information in the development
of in-use emission factors for emissions and air quality modeling.
Further, manufacturers have told us that they expect the proposed
program will fortify the traditional laboratory-based engine
development process. This will be done by enhancing a manufacturer's
ability to evaluate the performance of the engine and emissions control
system under real world operating conditions and use, the results of
which may be used to create cleaner and more durable future engine
designs. Finally, the in-use test data will also be available to the
public for review and analysis.
As previously described, the in-use NTE testing program will be
fully enforceable beginning in 2007 for gaseous pollutants and 2008 for
PM. To ensure a successful launch of this new program, there is a
mandatory pilot program for gaseous emissions in calendar years 2005
and 2006, and 2006 and 2007 for PM using only the first phase (Phase 1)
of testing. During these years both EPA and the heavy-duty diesel
engine manufacturers will gain valuable experience with the in-use
testing protocols, and the generation, interpretation, and reporting of
in-use emissions data. If an engine family fails to meet the vehicle
pass requirements of Phase 1 testing under the pilot program, we will
not pursue any form of remedial action based solely on that data.
However, we may utilize such information in conjunction with our own
test data and other information to assess or pursue any enforcement or
remedial action that otherwise may be authorized during that time.
The success of this testing program depends on ensuring that the
new onboard, portable measurement systems are correctly measuring
exhaust emissions in the field. To this end, we are establishing
measurement ``accuracy'' margins for these new systems. The purpose of
the margins is to account for the emissions measurement variability
associated with these units in the field. During the pilot program
years, manufacturers will use interim margins that we believe represent
an upper bound of the possible instrumentation variability based on our
experience with portable and laboratory measurement systems. Accuracy
margins for the fully enforceable program are being developed through a
comprehensive research, development, and demonstration program. The
program is described in a Memorandum of Agreement and summarized in
section II. L. 3. of this preamble.
B. Background on the Origins of This Rule
On October 6, 2000, we published a final rule that promulgated new
emission standards for on-highway heavy-duty engines. See 65 FR 59896.
The final rule included new standards, applicable to 2007 and later
model year heavy-duty diesel engines, called NTE standards. These
standards are designed to apply under any conditions reasonably
expected to occur during normal vehicle use. The test procedure for the
NTE standards is different from most previous test procedures in that
it is not based on a rigidly timed test cycle, but instead allows
testing at a wide, though bounded, range of engine and ambient
conditions that can occur in normal vehicle operations.
These NTE standards, as well as other provisions of the final rule,
were particularly designed to ensure that engines and vehicles
manufactured to meet the FTP standards over the engine certification
test cycle in the laboratory continued to effectively control emissions
under any conditions reasonably expected to occur during normal vehicle
use. The final rule described our concerns regarding additional factors
that may jeopardize the emission reductions expected in-use from the
standards promulgated in that rule. See 65 FR at 59910 (October 6,
2000). Among these factors was the absence of an effective in-use
compliance program for heavy duty engines and vehicles. We noted that
we had received broad support from states, environmental organizations,
and industry to move forward with developing a proposal to address this
issue. The Engine Manufacturers Association (EMA) committed to work
diligently and cooperatively with EPA and the California Air Resources
Board (CARB) to resolve the open questions in a timely fashion. See 64
FR 58472, 58514 (October 29, 1999).
EMA and certain individual engine manufacturers challenged EPA's
adoption of NTE standards in several rules.\1\ EPA, CARB and the engine
manufacturers, as well as state and environmental organizations,
engaged in lengthy and ultimately productive discussions to settle
these challenges and to go forward with a regulatory program that
included robust measures to ensure that emission controls implemented
to meet EPA and CARB
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standards remain effective under all normal vehicle operation. One
result of these discussions was the identification of the basic program
elements for a manufacturer run, in-use NTE testing program, and an
agreement to go forward with a rulemaking to implement such a program
for on-highway heavy-duty diesel engines.\2\ Today's action essentially
completes that rulemaking process.
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\1\ See International Truck et al. v. EPA, (DC Cir Nos. 00-1510
and 00-1512); EMA et al v. EPA (DC Cir. Nos. 01-1129 and 02-1080);
International Truck v. EPA, No. 01-1137; EMA v. EPA, (DC Cir. No.
00-1066); and EMA v. EPA, (DC Cir. No. 03-1007)
\2\ See Final Settlement Agreement, dated June 2, 2003, in the
cases cited above.
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C. Historical Context
1. Genesis and Description of NTE Standards
Traditionally, heavy-duty diesel vehicles and engines have been
certified to exhaust emission standards in the laboratory. More
specifically, the engine is tested separately from the vehicle using an
engine dynamometer and a prescribed ``driving cycle.'' Monitoring for
compliance with the applicable emission standards during the life of
these vehicles (i.e., in-use) was also determined by removing the
engine from the vehicle and then testing it using the same laboratory
measurement procedures. Several years ago we became concerned that in-
use emissions might inappropriately exceed the applicable standards
when engines were operated under conditions not found during
traditional laboratory testing (i.e., off-cycle emissions). An
investigation into off-cycle emissions performance confirmed that
advances in engine technology had allowed some manufacturers to design
engines with control strategies which resulted in substantially greater
levels of emissions during typical real-world operating conditions than
were emitted during the laboratory testing cycle required for
certification.
To close the gap between laboratory and real world emissions
performance, and to deter manufacturers from using such strategies in
the future, we developed NTE emission standards for heavy-duty diesel
engines. The NTE requirements establish an area or zone under the
torque curve of an engine where emissions must not exceed a specified
value for any of the regulated pollutants.\3\ The provisions also
define a specific range of operating conditions, i.e., temperature,
altitude, and humidity. The test itself does not involve a specific
driving cycle of any specific length, i.e., mileage or time, rather it
involves all driving that could occur within the bounds of the NTE
control area. The vehicle (or engine) is operated under conditions that
may reasonably be expected to be encountered in normal vehicle
operation and use, including operation under steady-state or transient
conditions and under varying ambient conditions. Within the NTE control
area, emissions must not exceed a specified multiple of the underlying
FTP standards. For heavy-duty diesel engines, this multiple is
generally 1.25 or 1.50 times the applicable FTP standards.
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\3\ Torque is a measure of rotational force. The torque curve
for an engine is determined by an engine ``mapping'' procedure
specified in the Code of Federal Regulations. A graphical
representation of the NTE control area is contained in the Technical
Support Document accompanying this proposed rule.
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Initially, the NTE requirements were a key provision in consent
decrees with several manufacturers of heavy-duty diesel engines that
resulted from the investigation described above. This new requirement
became effective in 1998 for most manufacturers involved in those
consent decrees, and by November 2002 had been applied for such
manufacturers to the NOX standards set to go into effect in
model year 2004. NTE requirements are currently being used as a
screening tool for 2004 through 2006 model year engines not covered by
the consent decrees. The NTE requirements will be mandatory for all
2007 and later heavy-duty diesel engines. We also promulgated NTE
standards for certain other mobile sources.\4\
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\4\ The use of NTE testing as a screening tool for 2004-2006 on-
highway heavy-duty diesel engines is discussed in Advisory Circular
24-3. The final rule applying the NTE to 2007 and model year engines
is published at 65 FR 59896 (October 6, 2000). Other final rules
promulgated by EPA extended the NTE approach to new marine
compression-ignition engines at or above 37 horsepower, 64 FR 73300
(December 29, 1999) and 67 FR 68242 (November 8, 2002); and to a new
and more stringent phase of on-highway heavy duty engine standards
66 FR 5002 (January 18, 2001).
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The NTE test can be conducted in an emissions testing laboratory
using an appropriate dynamometer or while the vehicle is being used on
the road. It is this last feature that makes NTE testing a very
powerful in-use compliance monitoring tool. In-use testing and
compliance become much easier with the NTE standards since emissions
may be sampled during normal vehicle use on the road using portable
emission measurement systems. As already mentioned, traditional
laboratory engine testing over a very specific driving schedule
requires the engine be removed from the vehicle rendering in-use
testing prohibitively cumbersome and expensive. Further, engine-based
testing cannot account for the drive train and sensor interactions
which occur during normal vehicle operation. As such, testing during
normal vehicle use, using an objective numerical standard, makes
enforcement easier and provides more certainty of what is occurring in-
use versus a fixed laboratory procedure.
2. Current EPA In-Use NTE Testing
We have been conducting our own in-use NTE testing of heavy-duty
diesel engines for the past four years. Over that period, an average of
40 on-highway vehicles were tested annually. Vehicles are procured
through the voluntary participation of commercial and municipal fleets
and emissions are tested during normal service operation. Portable
emission measurement systems are installed on-site at the fleet's
facility before the vehicle begins its service day. EPA uses a
prototype portable sampling system which measures hydrocarbons (HC),
carbon monoxide (CO), and oxides of nitrogen (NOX). Our
experience with this program has aided us in developing today's final
rule for a manufacturer-run, in-use NTE test program.
3. Plans for Nonroad Diesel Engine In-Use NTE Testing
On June 29, 2004, we published NTE requirements that accompany our
new transient-cycle emission standards for nonroad diesel engines (69
FR 38957). This new test cycle will be phased into the certification
requirements between 2011 and 2013, depending on an engine's horsepower
rating. The NTE provisions are similar to those described in this
notice for on-highway heavy-duty diesel engines. Presently, we are
developing an outline for a proposed manufacturer-run, in-use NTE test
program for nonroad diesel engines covered by the new requirements. We
expect this program will have similar characteristics to today's rule,
but will address some unique issues pertaining to the nonroad market.
Among these are such things as the widely varying power ranges of
nonroad engines (including those much smaller and much bigger than
highway engines), and broad array of equipment applications that may
use the same engine type or model. We expect the program to have a
pilot program similar to the pilot program in today's rule and to be
initiated consistent with the introduction of emission control
requirements for nonroad engines built in conformance with the new
standards, which are based on aftertreatment. The resulting
implementation date may be as early as 2011.
[[Page 34598]]
D. California's Intent To Adopt an In-Use NTE Test Program
California's involvement in the development of this program was
critical in assuring that engine manufacturers are subject to a
consistent national in-use NTE test program. CARB intends to adopt an
identical program soon. EPA and CARB expect to coordinate in the annual
selection of engine families to be in-use tested and to work together
in determining whether Phase 2 testing is warranted for families where
the number of passing engines in Phase 1 does not automatically lead to
no further testing. CARB has its own authority and decision process in
determining remedial action for failing families, but CARB expects to
work with EPA and the manufacturers in this process.
II. Details of the Rule
This section presents the details of the two-phase in-use NTE
testing program for heavy-duty diesel vehicles. It focuses primarily on
the fully enforceable program that will begin with the 2007 model year
for gaseous pollutants and 2008 for PM. A number of the special
features for a pilot program during the two years preceding each of the
fully enforceable dates described above are also described. Key aspects
of the pilot program are further summarized in section II. M. of this
preamble.
We have initiated a comprehensive research, development, and
demonstration program that is designed to identify new accuracy
measurement margins for portable measurement devices. When completed,
the accuracy margins are expected to be adopted for use in the fully
enforceable program. EPA has modified the testing requirements during
the pilot program for manufacturers that participate in the accuracy
margin development effort. In addition, the fully enforceable program
for either gaseous emissions or PM may be postponed if the process of
identifying the final accuracy margins is significantly delayed beyond
the originally scheduled completion dates. The program for developing
the measurement accuracy margin is described in section II. L. and the
implications of this program are described throughout this preamble as
appropriate.
The in-use NTE testing program we are promulgating today is nearly
identical to the program we proposed in the Federal Register on June
10, 2004 (69 FR 32804) and June 21, 2004 (69 FR 34326). The features of
the program that were revised based on public comments received on the
proposed rule are described in this section. Our response to the
significant public comments is contained in the Summary and Response to
Comments document that accompanies this final rule.
A. Applicability
The requirements apply to diesel engines certified for use in
heavy-duty vehicles (including buses) with gross vehicle weight ratings
(GVWR) greater than 8,500 pounds. However, the requirements do not
apply to any heavy-duty diesel vehicle that was certified using a
chassis dynamometer under our CAP 2000 certification program, including
medium-duty passenger vehicles with GVWRs of between 8,500 and 10,000
pounds. The manufacturer of heavy-duty diesel engines subject to the
program is responsible for all of the costs associated with project
planning, vehicle procurement, testing, and reporting.
We are establishing a fully enforceable, two-phase test program for
heavy-duty diesel engines beginning in 2007 for gaseous pollutants and
2008 for PM. In those years, the fully enforceable test program will
apply to 2007 and later model year engines. We are also establishing a
mandatory pilot program for gaseous pollutants in calendar years 2005
and 2006, and for PM in calendar years 2006 and 2007. Under the gaseous
emission pilot program, 2002 through 2006 model year vehicles may be
tested. Under the PM pilot program, 2002 through 2007 model year
vehicles may be tested. The pilot program will utilize only the first
phase of the two-phase program developed subsequent fully enforceable
program.
We had originally proposed to require emissions testing for PM
concurrently with gaseous emissions. In doing so, we acknowledged that
more development work was needed before portable PM-measurement systems
were available. However, it appeared possible to complete this work
prior to the start of the pilot program in 2005. The engine
manufacturers commented that the instrumentation to measure PM
emissions onboard a vehicle was not available. Further, they stated
that a PM requirement should not be included in the program until such
time as validated, properly field-tested onboard devices become
commercially available. Our evaluation of the status of portable PM
measurement technology shows that the development of portable devices
has progressed, but not as quickly as anticipated. We currently expect
portable PM measurement systems will be available for 2006. Therefore,
we have delayed the start of the PM pilot program one year until that
date, i.e., 2006. Similarly, the enforceable program for PM will now
start in 2008. A more detailed discussion of both gaseous and PM
portable measurement systems is presented in section II. L.
Engine manufacturers commented that the model year applicability
for the pilot program was too broad. Specifically, they argued that the
plot should be limited to 2005 and 2006 model year vehicles because
some 2002 through 2004 engine families were not specifically certified
to meet NTE standards. We agree with the manufacturers to the extent
that engine families which were not certified in compliance with the
NTE requirements should not be tested in the manufacturer-run program.
However, their recommended exclusion is also too broad. Instead, we
will include model years back through 2002 in the pilot program, but we
will only select engines which have been designed to comply with the
NTE. This includes engines certified under consent decree requirements,
California NTE regulations, and the voluntary NTE provisions contained
in EPA guidance document VPCD 98-13 and Advisory Circular 24-3.\5\ EPA
will only select engine families for which the manufacturer's Statement
of Compliance specifically describes the engine as being designed to
comply with the NTE either by regulation or voluntarily. For engines
not designed to comply with the NTE, EPA does reserve the right to use
the NTE as a means to evaluate the appropriateness of a manufacturer's
auxiliary emissions control devices (i.e., screen for defeat devices)
as explained in the EPA guidance documents above. In such a case, EPA
would conduct the testing and would not require the manufacturers to do
so under the in-use program.
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\5\ Add titles, etc., for the two documents here.
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B. Engine Family Selection
1. Number of Engine Families
EPA currently estimates that 71 heavy-duty diesel engine families
are being certified by 13 manufacturers that would potentially be
eligible for in-use testing under this proposed program. Our goal in
deciding how many engine families should be tested each year is to
conduct enough testing to assure in-use compliance with the applicable
emission standards, while at the same time keep the program from being
overly burdensome for the engine manufacturers.
As a general premise, we believe it is a reasonable test all of a
manufacturer's
[[Page 34599]]
heavy-duty diesel engine families over a four-year period. So, we will
to designate up to 25 percent of a manufacturer's total number of
engine families for testing per calendar year. The number of engine
families that are tested in a given year will be based on the actual
number of engine families certified by that manufacturer in that year,
rounded up or down as appropriate. However, for the purpose of
calculating the number of engine families certified in a given year, we
will only include engine families with a production volume greater than
1,500 engines. This designation strategy will provide in-use test data
for most of the diesel engine population and, at the same time, not
overburden manufacturers that have several small production engine
families. If a manufacturer has three or fewer engine families that
exceed the annual 1,500 engine production limit, including when a
manufacturer has no families with production levels above that limit,
we will only test one engine family per year.
We will also cap the maximum number of families designated for
testing over any four-year period to the average number of families for
that manufacturer over that four-year period, rounding up or down as
appropriate.
Several examples showing how many engine families we can designate
each year for testing under the proposed in-use, manufacturer-run
program are provided below. The illustrations are arranged in an
increasing order of complexity. Additional examples and other relevant
information are presented in the Technical Support Document for today's
action.
The first two examples illustrate how we would calculate the annual
number of engine families for testing using the 25 percent per year
limit for engine families above the 1,500 units per year level, and
when a manufacturer only has engine families with annual production
less than 1,500 units per year. First, Manufacturer A has 12 certified
engine families in production in a given model year, and only 8 out of
the 12 families have annual productions levels of over 1,500 engines.
Then the maximum number of engine families we can designate for in-use
testing from Manufacturer A in that calendar year is 2 (i.e., 25
percent of 8 engine families). Second, Manufacturer B has 8 engine
families, all with annual production less than 1500 engines. In this
situation, we are limited to selecting only 1 engine family for testing
in that calendar year.
The next two examples are somewhat more complex. The first of these
examples shows how the four-year limitation (i.e., cap) on the maximum
number of designated engine families works with a constant number of
engine families over time. First, Manufacturer C has 3 engines families
in production in each of four consecutive years, or an average of 3
engine families per year over a four-year period. Additionally, all the
families have annual production volumes over 1,500 units. In this
situation, 1 engine family per year can be designated for testing in
three of the four calendar years. However, no family can be selected in
one of the four years because the number of families tested would
otherwise exceed the average number of families produced over the four-
year period. Second, Manufacturer D produces 7 engine families each
year during a four-year period and all the families are over 1,500
units per year. In this situation, we can select up to 2 engine
families per year under the 25 percent annual limit (i.e., 25 percent
of 7 families is 1.75, which rounds up to 2). So, 2 engine families can
be designated for testing in three of the four calendar years, but only
1 family can be tested in a fourth year because the four-year cap on
the maximum number of engines tested would otherwise be exceeded.
The last example is the most complex. It once again illustrates how
the four-year cap on the maximum number of designated engine families
applies, but in this case for a scenario were the number of engine
families varies over time, and when the fully enforceable program is
just beginning (i.e., the 2007 calendar year). Manufacturer E produces
6 engine families in the 2004 through 2009 model years and 7 engine
families in the 2010 through 2014 model years. We can order testing for
2 engine families each in 2007, 2008 and 2009 under the 25 percent
annual limit (i.e., 25 percent of 6 families is 1.5, which rounds up to
2 using standard rounding practices \6\). In 2010, however we cannot
order testing of any families because the average number of certified
families in the four years preceding testing (including the current
model year) is 6.25, rounded down to 6. Since we have already tested 6
engine families in the previous three years, we cannot test another
engine family in the fourth year because the total number of engine
families in the four-year period would be greater than the average
number of engine families produced in the past four years (i.e., 6). In
2011, we can order the testing of 2 families under the 25 percent
annual limit. Here, the average number of engine families in the four
years preceding testing (including the current model year) is 6.5. This
rounds down to 6, again using standard rounding practices. Since we
have only tested 4 engine families in the previous three years, we can
test another 2 engine families in the fourth year. For 2012 the average
number of engine families in the four-year period is 6.75 (6 families
in model year 2009 and 7 families in model years 2010 through 2012).
Rounding up from 6.75, we can order testing for 7 engine families in
the four-year period prior to 2012. Since we have only ordered testing
for 4 families in the previous three years, we can order testing for 2
families under the 25 percent annual limit in 2012. Similarly, we can
order the testing of 2 families in 2013. However, in 2014, we can order
testing for only 1 engine family because the average number of families
produced in the applicable four-year period is 7 and we have already
ordered testing for 6 engine families in the previous three years.
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\6\ See, ``Guide for the Use of the International System of
Units (SI), NIST Special Publication 811, 1995 Edition, National
Institute of Standards and Technology, U.S. Department of
Commerce.'' Under the rounding convention contained in this
reference, when the first digit discarded is exactly 5, the last
digit retained should be rounded upward if it is an odd number, but
no adjustment made if it is an even number.
---------------------------------------------------------------------------
Only the most recent and accurate sales information will be used to
identify engine families with annual U.S.-directed production volumes
of 1,500 engines or less when determining the potential number of
engine families we may require a manufacturer to test in any year. When
an engine family has reached the end of its production, the actual
sales for an engine family that is already required to be submitted to
EPA at the end of each model year as part of the certification program
will be used for this purpose. If the engine family has not ended
production and final sales are not available, then we may use the sales
projection that is provided as part of a manufacturer's certification
application.
After the number of engine families that are eligible for in-use
testing is determined for a calendar year, we may select any engine
family for testing that a manufacturer has in production that model
year, or any other engine families produced by the manufacturer in
previous model years covered by the testing program. We also reserve
the right to designate any engine family previously tested under this
program in a subsequent calendar year. This will allow us to evaluate
the emission performance of heavy-duty diesel vehicles as they
accumulate mileage over a number of years. It will also allow us to
assess a manufacturer's remedy of any previous
[[Page 34600]]
nonconformance problem, which was discovered under the proposed in-use
testing program. When evaluating past model years for testing, we will
also consider such factors as the likely number of vehicles remaining
in service and their perspective mileage relative to their certified
useful life.
We intend to make our engine family selections by approximately
June 30 of each calendar year. Waiting until the mid-point of the
calendar year to select engine families for testing increases the
likelihood that EPA will be able to choose from a manufacturer's entire
product offering for that same model year. Typically, all of a
manufacturer's engines for a given model year are covered by a
certificate of conformity by the mid-point of that same calendar year.
For example, all 2007 model year engines are expected to be certified,
in most cases, by June 30, 2007. This also allows EPA to calculate the
number of engine families to be ordered for testing in a given calendar
year without having to continually update that number and order further
testing. In the event one or more engine families are certified by a
manufacturer after June 30, we will update our calculation of the
number of engine families we can order tested in that calendar year
and, if appropriate, order further testing. We still may select any
engine family by the end of that calendar year for testing, including
the newly certified family, with the understanding that the
manufacturer is allowed the same period of time for testing and
reporting results from each engine family from the date of selection.
Regarding the testing and reporting period, we are allowing 18
months from the time an engine family is designated for testing until
the results must be reported to us. A manufacturer may request up to
six additional months to complete and report Phase 2 test results if
there is a reasonable basis for needing more time. Further, a
manufacturer may request an additional six month extension. More
details on the testing and reporting period is presented in section
II.K.1.
Engine manufacturers commented that EPA should specify a single
point in time for identifying engine families that must be tested for
that calendar year's selection since the number of certified families
changes over the year. We believe the proposed selection protocol
fairly balances our desire to maximize the number of engine families
that may be designated for testing in any year, with a manufacturer's
need for certainty in its planning process and a manageable testing
burden. As already noted, manufacturers normally certify all or most of
their engine families by June 30 of each year. So a manufacturer will
know either its complete liability under the in-use testing program or
the bulk of its responsibility by that time. Because of the lead time
normally associated with engine development and the certification
process, a manufacturer planning to certify an engine family after
approximately June 30 should calculate the possible in-use testing
exposure associated with that action and plan accordingly relative to
the expenditure of resources. This does not seem overly burdensome,
since all selected engine families are provided the same testing and
reporting period, regardless of the date the family was selected for
testing (see section II.K.1. of this preamble for a discussion of the
testing and reporting period). Therefore, we are adopting the engine
family selection protocol as proposed.
2. Treatment of Nonconforming Engine Families
If there is clear evidence of an emissions nonconformity with
respect to one or more of that manufacturer's families, a manufacturer
may be required to test a number of engine families that exceeds the
numerical limits described in Section II.B.1. above. More specifically,
we may require any engine family for which such a determination is made
be tested in the manufacturer-run, in-use NTE testing program in any
subsequent year without counting toward the otherwise applicable limit
on the number of families we may select in any year.
For the purposes of the in-use testing program only, if an engine
family was subject to a recall action (voluntary or mandatory), that
failure is clear evidence of a nonconformity for that engine family and
any carryover engine family produced in a prior or subsequent model
year.\7\ \8\ The remedied engine family may have been normally selected
for testing under the proposed in-use testing program, but did not pass
the vehicle pass criteria and was subject to a recall action.
Alternatively, the remedied family may have been recalled based on the
results of an EPA in-use testing program. This linkage of carryover
engine families helps ensure that manufacturers will be sufficiently
motivated to remedy in a timely manner any noncompliance which is
strongly suspected to cut across multiple engine families. As with
other aspects of this program, we will consult with the manufacturer
when contemplating a determination of clear evidence. An engine family
selected using the ``no count'' designation may have never been tested
under the proposed manufacturer-run, in-use NTE testing program, or it
may have been tested but no remedial action was initiated based on the
test results.
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\7\ Manufacturers designate carryover engine families during the
certification process. The carryover designation indicates that the
engine family for which a certificate is being requested is nearly
identical to an engine family which has been previously certified.
In such instances, the emissions results from the previously
certified engine family are directly applied or carried over to the
engine family for which a certificate is being requested.
\8\ Section 207 (c) of the Clean Air Act (CAA) authorizes EPA to
require manufacturers to recall vehicles or engines for the purpose
of remedying noncompliance with EPA regulations that occur during
the regulatory useful life of the vehicle or engine. EPA may only
require a recall when the noncompliance involves a substantial
number of a class or category of vehicles or engines which have been
properly maintained and used. (See CAA Section 207(c)). The
procedures EPA uses to administer emissions recalls are described in
40 CFR Part 85 Subpart S.
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3. Small or Unavailable Engine Families
We recognize the possibility that a manufacturer may find it
difficult or impossible to locate a sufficient number of vehicles from
a designated diesel engine family to complete testing even after a
diligent and good faith recruiting effort. This might especially happen
for families with limited sales, or if a significantly older model year
is designated for testing. Of course, we will attempt to avoid such an
outcome in our engine family selection process. However, if a
manufacturer encounters this problem and cannot complete either the
Phase 1 or Phase 2 testing in the time frame or manner required, the
manufacturer may ask us to modify the testing requirements for such
engine family or designate a different diesel engine family for
testing.
4. Engine Families Unsuitable for Testing
The Detroit Diesel Corporation (DDC) commented that certain chassis
and applications are entirely unsuited for in-use testing, and that
these should be excluded from the program. As an example, the company
identified fire truck and emergency vehicles with unique engine
families as falling into this category because they can not be
instrumented without compromising the utility of the chassis. Also, DDC
suggested that there are numerous applications where interior space
constrains would not allow mounting the test equipment inside the cab
and still provide for the presence of a technician. In this latter
regard, the company noted that weatherproof systems are yet to be
developed by instrument manufacturers. Consequently, DDC recommended
that EPA not require in-use testing of engine
[[Page 34601]]
families constrained by such application considerations.
In general, EPA will avoid selecting engine families, and vehicle
chassis and applications where testing with portable emissions sampling
systems is infeasible, impractical, or unsafe. We anticipate that such
testing challenges would generally be isolated to a specific sub-class
of vehicle chassis or applications. Therefore, engine families are not
expected to be wholly eliminated from consideration for reasons of
portable testing incompatibility. To the extent incompatible engine
families exist, they will likely be characterized by small volume
annual production of fewer than 1,500 units. In general, these low
production engine families will be selected for testing less frequently
than their larger volume counterparts which makes it easier to avoid
compatibility issues.
We also believe that the in-use testing requirements provide
manufacturers sufficient latitude to avoid selecting vehicles which are
not suitable for in-use testing. In our own in-use testing with
portable emission measurement devices, we have successfully tested both
fire trucks and emergency vehicles. Additionally, the final regulations
allow a manufacturer to reject a particular vehicle from the program if
it is found to be unsuitable without prior notification to EPA. Any
rejected vehicle must be replaced with another perspective test
vehicle, and the rejection reported to us in the manufacturer's normal
in-use testing reports. We will provide additional guidance on the
conditions that must be satisfied to reject a vehicle for this purpose.
We expect that concerns about the suitability of portable testing
will continue to diminish as portable emissions measurement systems
evolve into more compact, durable, user-friendly devices.
C. Phase 1 Testing Scheme
1. Focus of Initial Testing
The first phase of testing, Phase 1, is intended to quickly screen
a designated heavy-duty diesel engine family for conformity with the
applicable NTE standards. If enough of the engines tested from the
family pass the initial screening, no additional testing of that family
is required under the in-use testing program in that year. If the early
test results from Phase 1 indicate a potential nonconformity, then
several more vehicles must be tested to generate additional information
regarding the significance of any potential problem, or whether more
testing in the next phase of the program, Phase 2, is needed to further
evaluate the emissions performance of that engine family.
2. Engine Family Evaluation Criteria and Outcomes
For Phase 1 testing, a manufacturer must test a minimum of five and
a maximum of 10 different vehicles within a designated engine family.
The exact number of vehicles depends on how many of the tests exceed a
specified numerical emissions limit, or the vehicle pass criteria, not
to be confused with the proper maintenance and use criteria (see
section II. E. of this preamble for a description of the vehicle pass
criteria). Requiring up to 10 vehicle tests will provide sufficient
information for us to decide if further testing or other information is
needed to better evaluate a potential nonconformity, or if some form of
remedial action may be warranted. This level of testing will provide a
quick indication of an engine family's emissions compliance without
being overly burdensome to engine manufacturers. Our multi-step engine
family evaluation criteria and the outcomes associated with how many
vehicles pass the in-use testing requirements at various levels within
the testing hierarchy are described below.
A manufacturer will initiate Phase 1 by testing 5 vehicles. If all
five satisfy the vehicle pass criteria (i.e., 5 out of 5 pass), testing
stops and no other action is required of the manufacturer for that
diesel engine family under the program for that year. If only one of
the initial test vehicles fails the vehicle pass criteria, the
manufacturer will test another vehicle. The manufacturer may stop
testing if the sixth vehicle satisfies the vehicle pass criteria (i.e.,
5 out of 6 pass). In the event that neither of the above conditions are
met (i.e., 4 or fewer out of 6 pass), the manufacturer must test a
total of 10 vehicles.
Various outcomes are possible based on the observed number of
vehicle passes or failures from the Phase 1 testing, as well as other
supplemental information. If all four of the additional test vehicles
met the vehicle pass criteria and only two of the original six test
vehicles exceeded the criteria (i.e., 8 out of 10 pass), testing stops
and no other action is required of the manufacturer for that diesel
engine family under the program for that year. When six or seven of the
10 test vehicles satisfy the vehicle pass criteria (i.e., 6 or 7 out of
10 pass), the manufacturer must join EPA in follow-up discussions to
determine whether any further testing, investigations, data
submissions, or other actions may be warranted. In such a case, three
outcomes are possible. First, we may ultimately decide not to take
further action if no significant nonconformity is indicated after a
thorough evaluation of the causes or conditions that caused vehicles in
the engine family to fail the vehicle pass criteria, and a review of
any other supplemental information obtained separately by EPA or
submitted by the manufacturer shows that no significant nonconformity
exists. Testing would then stop and no other action is required of the
manufacturer for that diesel engine family under the program for that
year. Second, we may seek some form of remedial action from the
manufacturer based on our evaluation of the Phase 1 test results and
review of other supplemental information. Third, and finally, the
engine manufacturer may undertake Phase 2 testing, if both EPA and the
manufacturer agree this is the best course of action. Of course, a
manufacturer may always voluntarily conduct Phase 2 testing.
In the event that fewer than six test vehicles comply with the
vehicle pass criteria (i.e., 5 or fewer out of 10 pass), the
manufacturer must consult with us just as when six or seven out of 10
pass as described above. Once again, we may decide not to take further
action if no significant nonconformity is indicated. If a possible
nonconformity is indicated, the consultation may lead us to mandate
Phase 2 testing even if the manufacturer does not voluntarily elect to
do so. In situations where a significant nonconformity is observed
during Phase 1 testing, we may order a recall action for the diesel
engine family in question if the manufacturer does not voluntarily
initiate an acceptable remedial action.
D. Phase 2 Testing Scheme
1. Initiation and Focus of Additional Testing
The primary purpose of Phase 2 test program is to gain further
information regarding the extent to which, and under what conditions,
the vehicles from the designated engine family are failing to pass the
vehicle pass criteria. If appropriate, a manufacturer's testing may be
focused on certain test conditions or a subclass of engines within the
designated heavy-duty diesel engine family as outlined below. As
described previously, EPA and the manufacturer may agree that it is
appropriate to initiate Phase 2 testing if six or seven of the 10 test
vehicles in Phase 1 satisfy the vehicle pass criteria. Phase 2 testing
may also be mandated by us in the event that only five or fewer of the
test vehicles in Phase 1 meet the
[[Page 34602]]
vehicle pass criteria. (See section II. C. for additional information
regarding the conditions under which Phase 2 may be initiated.)
2. Number of Engines and Test Conditions
We may require a manufacturer to test up to 10 vehicles from the
designated heavy-duty diesel engine family under Phase 2. We may, at
our discretion, require the testing of fewer than 10 vehicles. A pass/
fail determination for each vehicle will be made by comparing its
measured emissions to the same vehicle pass criteria used in Phase 1.
Testing up to 10 additional vehicles under this phase of the program
will provide valuable information regarding whether the engine family
conforms with the applicable requirements.
We may direct a manufacturer to test one or more specific engine
and emission control or power configurations (i.e., subclasses) within
the designated engine family. Additionally, we may specify certain
driving routes or other driving conditions (e.g., temperatures,
altitudes, geographic conditions, or time of year). As already
discussed, the purpose of these additional specifications is to better
understand the extent to which, and under what conditions, the vehicles
in the engines family are failing to pass the vehicle pass criteria.
Therefore, the specifications would be based on the Phase 1 test
conditions that indicated a potential nonconformity.
We requested comment on whether EPA should similarly be allowed to
direct a manufacturer to test specific engine configurations, test
routes, and driving conditions for Phase 1 testing. We are not adopting
that requirement based on our review of adverse comments we received
from engine manufacturers. The comment and our response is contained in
section II. J. of this preamble.
E. Vehicle Pass Criteria
Generally, the vehicle pass criteria require measuring the
emissions from the test engine each time it operates for 30 seconds or
more in the NTE control area. The NTE control area is a defined range
of engine operating conditions that are subject to the NTE emission
standards (see section I. C. 1. of this preamble for more information
on the NTE control area). Each excursion into the NTE control area for
thirty or more seconds is called an NTE sampling event. The 30 second
minimum is intended to moderate the influence of short-duration, high
intensity emission spikes that do not have a significant bearing on
overall, real-world emissions in the compliance determination. The
average emission level of the NTE sampling event for each regulated
pollutant is then compared to its corresponding NTE emission threshold.
The NTE emission threshold is the sum of the applicable NTE standard,
any in-use compliance margin already allowed by the regulations, and
the new in-use measurement margin allowance. The vehicle pass criteria
then require a comparison of the number of NTE sampling events for an
individual pollutant that were below the respective NTE threshold to
all of the sampling events from the test for that same pollutant. The
NTE threshold is further described in section II. F. of this preamble.
Also, for the first three years of the program, no sampling event may
be higher than a specific maximum emission limit. The maximum emission
limit for these engine families is described below.
More specifically, all valid NTE sampling events for a pollutant
must be used in the vehicle pass determination. A valid NTE event is
any sample that meets the 30 second minimum period described above,
excluding any engine operation that is exempt from the NTE standards
under the existing regulations. NTE carve-out provisions may either
exclude certain operating points from the NTE engine control area or
exempt engines from the NTE standards when operating in defined regions
of the NTE engine control area. Currently, an engine may also be
allowed to temporarily exceed the NTE standards under certain limited
circumstances under the NTE deficiency provisions.\9\ If 90 percent of
the valid NTE samples on a time-weighted basis for a regulated
pollutant are no greater than the applicable NTE threshold, then the
test engine meets the vehicle pass criteria for that particular
pollutant.
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\9\ For more information on NTE control area limits and
exclusions, see 65 FR 59912, 59914 (October 6, 2000), and 66 FR 5040
(January 18, 2001).
---------------------------------------------------------------------------
However, model year 2007 through 2009 engines must meet certain
additional requirements. For these years, 100 percent of the valid NTE
samples for any regulated pollutant must also be less than two times
(2X) the applicable NTE threshold, except when the engine is certified
to a Family Emission Limit (FEL) for NOX of 0.50 gram per
brake horsepower-hour (g/bhp-hr) or less. In this case, 100 percent of
the valid NTE NOX samples must be less than two times the
NTE threshold or less than 2.00 g/bhp-hr, whichever is numerically
greater. While operation in the area of an approved deficiency or
carve-out is excluded from being a valid NTE event for the purposes of
this in-use testing program, manufacturers must still employ
appropriate emissions control during operation in these regions as
required by the prohibition against defeat devices. For any operation
which occurs within the area of an approved NTE deficiency, we will
compare the measured emissions results to the emissions estimates the
manufacturer provided for that deficiency at the time of certification
so we can determine whether the deficiency requirements have been met.
The 90 percent criterion should provide a good indicator of
compliance with the applicable emission standard, while at the same
time allowing for certain emissions behavior that may be very
infrequent or unusual in nature and, therefore, atypical of overall in-
use operation. We have fashioned the additional maximum NTE criteria
for 2007-2009 model year engines because we believe it appropriately
reflects the capability of current control technology when robustly
designed and properly maintained. We do not envision any situation
where the current technology could not be designed to avoid emissions
above these maximum criteria, even in the atypical situations mentioned
above. EPA will evaluate the need for, and level of, any such NTE
maximum criteria for 2010 and later model year heavy-duty diesel
vehicles based, in part, on data from the proposed in-use test program,
the capability of technology used to comply with the 2010 model year
requirements, and other relevant test information. If we decide that
such criteria are appropriate based on this review, any new
requirements will be established in a rulemaking action. If we take no
action, the maximum NTE criteria will cease to exist after the 2009
model year.
We are adopting the following multi-part methodology for
determining if the engine complies with the 90 percent vehicle pass
criterion for each regulated pollutant. First, find the average g/bhp-
hr emission level for each valid NTE sample for a specific pollutant by
dividing the total mass of measured emissions (e.g., grams) by the
amount of work performed during the NTE event (e.g., brake horsepower-
hour). (Note that this step is also used to determine compliance with
the maximum NTE criteria for 2007-2009 model year engines as described
above.) Second, determine for each valid NTE sampling event, whether
the average emission level is less than or equal to the NTE threshold
for that same pollutant. Third, calculate a time-weighted vehicle pass
ratio for the pollutant, or the number of valid NTE sampling events
that meet the
[[Page 34603]]
applicable NTE threshold compared to the total number of valid NTE
sampling events, weighted by the time of each valid NTE event. To do
this, begin by summing the time from each valid NTE sampling event
where the average emission level for each pollutant is no greater than
the NTE threshold for that pollutant, and then divide this value by the
sum of the engine operating time from all valid NTE samples. The
resulting value is the vehicle pass ratio for that pollutant and test.
However, if any single valid NTE sampling event exceeds 600 seconds or
10 times the length of the shortest valid NTE event, the time
contribution for that event must be limited to the smaller of 600
seconds or 10 times the shortest event for the above calculation. These
conditions on the maximum allowable duration for any single NTE event
are intended to prevent a small number of very long sampling events
from inappropriately overwhelming the time-weighted results.
A vehicle must meet the vehicle pass criteria for every individual
pollutant in order for the vehicle to ``pass'' the test under the terms
of the in-use testing program. Stated differently, failing the vehicle
pass criteria, even for a single pollutant, counts as a vehicle failure
for that particular test.
We want to clarify that the vehicle pass criteria used for the
manufacturer-run, in-use testing program do not correspond specifically
to the criteria for showing compliance to the NTE standards. That is,
the fact that a vehicle meets the vehicle pass criteria under this
program does not mean that the vehicle passes the NTE standards, or
that the engine family is in full compliance with the standards, and
the use of these criteria to show a vehicle ``pass'' in this program
does not indicate that the criteria would be appropriate for NTE
testing in other contexts.
The vehicle pass criteria, along with the engine family evaluation
criteria of the Phase 1 and Phase 2 test schemes (described later), are
designed to help make the best use of manufacturers' and EPA's
resources in determining what further action is appropriate regarding
that engine family. Therefore, the vehicle pass criteria, the
definition of a valid NTE sampling event, the criteria for moving from
Phase 1 to Phase 2, and all others aspects of the in-use testing
program are solely for purposes of this manufacturer run, in-use test
program and are not intended to revise, change, or interpret the NTE
standards, the NTE test procedures, or to define compliance with the
standards.
F. NTE Threshold Specification
The numerical value of the NTE threshold is defined as the
applicable NTE standard, including any compliance margin already built
into the standard for in-use testing, in addition to a new margin to
account for the in-use measurement accuracy of the portable emission
measurement systems. Therefore, these margins are added to the
applicable standard or FEL to determine the numerical in-use compliance
limit (i.e., NTE threshold).
1. Not-to-Exceed Standards
NTE standards applicable to model year 2007 and later heavy-duty
diesel engines apply to the exhaust emissions of non-methane
hydrocarbons (NMHC), carbon monoxide (CO), particulate matter (PM) and
oxides of nitrogen (NOX) from these engines. The levels of
the NTE standards for these pollutants are determined by applying a
multiplier to the applicable FTP standard. The multiplier varies by
pollutant and certification level, but it is generally either 1.25
times the FTP standard or 1.50 times the FTP standard. See 40 CFR
86.007-11(a)(4). For 2002-2006 model year engines tested under the
pilot program, the applicable NTE limit used to develop the NTE
threshold is 1.25 the FTP standard for that model year.
The FTP standards for 2002 and 2003 model year heavy-duty diesel
engines are contained in 40 CFR 86.099-11, except that those engine
families subject to NTE requirements under the Consent Decrees would
use an NTE threshold based on the FTP levels found in the appropriate
Consent Decree. The standards for 2004 to 2006 model year heavy-duty
diesel engines are contained in 40 CFR 86.004-11. Those for 2007 and
later model years are shown in 40 CFR 86.007-11.
2. Existing In-Use Compliance Margins
We previously established compliance margins for in-use
NOX and PM emissions testing of 2007 to 2010 model year
heavy-duty diesel engines. For NOX, the margin varies by
mileage from 0.10 to 0.20 g/bhp-hr for engines certified to an FEL no
higher than 1.3 g/bhp-hr. For PM, the margin is 0.01 g/bhp-hr. (See 40
CFR 86.007-11(h) for more details.)
3. New Measurement Margins for Portable Measurement Systems.
We are including new ``accuracy margins'' in the calculation of the
emission thresholds for this program. The allowances are primarily
designed to account for any differences between the accuracy of the
portable emission measurement instruments for use on a vehicle and the
accuracy of those available for use in a laboratory. The allowance also
takes into account the different way in which emissions are calculated
in a laboratory versus in the field. Because of the continuing
uncertainty regarding the specific accuracy of development for portable
measurement systems (See section II. L.), we have chosen to adopt an
interim set of accuracy margins at this time. These margins will be
used only in the pilot program. As explained below, we are developing
more precise accuracy margins for use in the subsequent fully
enforceable in-use testing program.
a. Pilot Program Accuracy Margins. During the pilot program years
that precede the fully enforceable program, manufacturers will use
interim margins that we believe represent an upper bound of the
possible instrumentation variability based on our experience with
portable and laboratory measurement systems. The pilot program accuracy
margins are: NMHC, 0.17 grams per brake horsepower-hour (g/bhp-hr); CO,
0.60 g/bhp-hr; NOX, 0.5 g/bhp-hr; and PM, 0.10 g/bhp-hr.
b. Final Program Accuracy Margins. The margins for the fully
enforceable program, i.e., 2007 for gaseous pollutants and 2008 for PM,
are being jointly developed through a comprehensive research,
development, and demonstration program. The cooperative program is
described in a Memorandum of Agreement (MOA) among EPA, CARB, and the
engine manufacturers.\10\ The purpose of the MOA is to specify: (1) A
detailed roadmap for developing data-driven margins based on a sound
engine and vehicle test plans; (2) the respective roles and
responsibilities of each party; (3) the exact statistically-based
algorithms for calculating the data-driven margins; (4) how the final
margins can be incorporated into the in-use testing regulations; and
(5) the consequences of failing to complete the cooperative program in
time to start either the gaseous or PM fully enforceable testing
program as adopted in today's action. See section II. N. of this
preamble for a more complete description of the MOA.
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\10\ See ``Memorandum of Agreement, Program to Develop Emission
Measurement Accuracy Margins for Heavy-Duty In-Use Testing,'' dated
May XX, 2005. A copy of the memorandum is contained in the public
docket for this rule and at the EPA/OTAQ Web site (http://www.epa.gov/otaq/hd-hwy.htm).
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As described at the beginning of this section, we chose the
additive approach for incorporating the new portable measurement system
accuracy margins into the NTE thresholds. We did this to
[[Page 34604]]
encourage instrument manufacturers to develop more accurate and
repeatable portable measurement instruments in the future. A fixed
allowance creates the same situation that already exists for laboratory
measurement instruments, which encourages more accurate and repeatable
instruments. That is, with no allowance or a fixed allowance, a more
accurate and repeatable instrument will allow engine manufacturers to
allocate a smaller fraction of their compliance margin to instrument
error. We will revisit this issue in the future to determine if the
final margins determined through the comprehensive program discussed
above should be reduced or eliminated based on technical advances in
these devices. To this end, we intend to adjust or phase-out such a
margin through future rulemaking based upon improvements to the
measurement equipment. We intend, however, that no future action to
revise the final margins discussed above would take effect prior to
2010. The adjustment or phase-out would apply to any engine tested
after such a rule became effective.
G. Considerations in Deciding on Remedial Action
In determining whether to pursue some sort of remedial action
following Phase 1 and Phase 2 testing, we will consider supplemental
information obtained separately by us, or submitted by the engine
manufacturer. This information could include emissions data from
additional tests performed with onboard portable emissions measurement
devices, as well as from testing conducted using engine dynamometers or
chassis dynamometers. The information may include an evaluation of,
among other things: The margin by which any exceedence was above the
NTE threshold; the number of engines that showed exceedences; the
frequency and duration of any exceedences as compared with the
aggregate amount of time that all of the test vehicles were operated
within the NTE zone; the emissions of the test vehicles over the entire
test route, including average(s); the projected emissions impact of the
exceedences; and the relationship of the exceedences at issue to the
engine family's ability to comply with the applicable standards or
FELs. We will also consider any other data or factors relevant to
determining whether to pursue some form of remedial action.
H. Quantity of Data Collected
The minimum time for data collection from a test vehicle is one
full shift (work) day of operation, provided that each test vehicle
operates in non-idle modes for at least 3 hours during a typical shift
day. Prior to the commencement of either Phase 1 or Phase 2 in-use
testing, the manufacturer will screen-out from Phase 1 testing any
vehicle that the manufacturer reasonably determines is unlikely to
operate in non-idle modes for at least 3 hours over a full shift.
In the event that a selected test vehicle does not operate in non-
idle modes for at least 3 hours over the full shift day, we are
requiring that the vehicle must be tested over a second full shift day
of operation. Testing shall not be required beyond the second full
shift day even if that second day of testing also fails to yield, in
the aggregate, 3 hours of vehicle operation in non-idle modes. After
the second day of testing, the valid NTE sampling events will be
evaluated according to the previously outlined criteria, even if less
than 3 hours of non-idle data is collected. In the event that no valid
NTE sampling events are recorded from a selected test vehicle, that
vehicle will be deemed to have satisfied the vehicle pass/fail criteria
for the purposes of this in-use testing program. At their option,
manufacturers may conduct in-use testing for a longer duration.
While the minimum data collection requirement described above
applies to both the pilot and fully enforceable programs, an evaluation
of in-use test data prior to 2007 could change the final value for the
data collection period. During the pilot program, we will perform a
statistical analysis, in collaboration with EMA, of the available in-
use testing data, particularly the data generated under the proposed
pilot program described below, to determine the necessary parameters of
the test regime. The end result could be either a longer or a shorter
period of data collection, or other revisions to the in-use NTE testing
program. We will, if appropriate, amend the regulations based on the
outcome of this analysis.
I. Screening, Adjustment, and Mileage of Test Vehicles
To help ensure that testing is conducted on a diverse sample of
``qualified'' vehicles, our proposal identified a number of general
pre-selection criteria for prospective test vehicles within a
designated engine family. First, test vehicles must be obtained from at
least two sources. We envision the most common source of engine will be
fleet operators, but could also include independent operators. As
stated previously, we believe manufacturers will be able to leverage
existing relationships with its customers or use this program as an
opportunity to strengthen those relationships. Second, manufacturers
must screen each selected vehicle for proper use and maintenance and
reject those vehicles which have not been properly maintained and used.
Third, prospective test vehicles must be screened to identify those
that are reasonably likely to operate in non-idle modes for at least 3
hours over the course of a full shift day (see section II. H. of this
preamble for more on the non-idle and shift day requirements). Fourth,
engines or critical vehicle systems that have been tampered with,
rebuilt, or subjected to major repairs that could affect emissions,
will not be used in testing. Fifth, test engines must have their
adjustable parameters set to the specifications contained in the
vehicle/engine maintenance manual (i.e., set to spec). Sixth,
manufacturers must establish appropriate means to ensure that test
vehicles are operated only on diesel fuels meeting the requisite
specifications for the model year in which they were emissions
certified. Seventh, and finally, no prospective test vehicles may be
rejected because of high mileage, except for those whose engines that
exceed their regulatory useful life.
We proposed that each manufacturer submit a general plan describing
how they would identify, locate, and screen vehicle for in-use testing.
The general plan was intended to cover all engine families selected for
testing by EPA. The plan was to indicate whether the procurement and
screening method may result in an emphasis on testing engines from a
particular type of driving route or from a particular geographic area.
The plan needed to identify the business relationships, such as with
vehicle manufacturers or fleet operators, that would be used to recruit
vehicles. The plan was to describe the methods that will be used to
gather available information about whether vehicles and engines meet
the seven general vehicle criteria described above, including any forms
or procedures that will be used. Finally, the plan would cover
situations not specifically addressed by the above seven cases. For
example, how the presence of an onboard diagnostic (OBD) system trouble
code or an illuminated malfunction indicator lamp (MIL) would be
treated in the test program. Deviations from the general plan would
need to be submitted to EPA for evaluation.
The engine manufacturers commented adversely on the mandatory
nature of the general plan. They stated that the general plan
requirements would unacceptably increase the burden of the overall test
program by adding multiple
[[Page 34605]]
layers of costs, delays, and complexities. Further, they claimed that
the requirement is not consistent with the ``screening'' nature of the
Phase 1 testing as described in the settlement agreement. Manufacturers
suggested that a more reasonable approach for dealing with this issue,
as described in the preamble for the proposal, is for EPA and the
engine manufacturers to work together to develop appropriately detailed
guidance documents relating to recruitment, screening, and preparation
of vehicles for testing. They also commented that if the general plan
requirements were retained, EPA should specify its review time for plan
approval.
We agree that it will likely be more efficient to obtain the
information contained in the general plan through guidance rather than
specific requirements in the regulations. We are currently developing
the guidance with help from CARB and the engine manufacturers. The
proposed general plan criteria, as well as other items, are included in
the guidance. It also includes a template for manufacturers to submit
the information suggested in the general plan. The manufacturers will
not be required by the guidance to provide a general plan but if they
do so, we would expect the criteria in the guidance to be followed.
We continue to feel that the information contained in the
voluntarily submitted general plan will be valuable to us in proving a
greater understanding of how the manufacturers conduct their testing
programs and an increased confidence in the test results. Without this
information, we will feel compelled to perform an increased level of
our own in-use testing to validate the manufacturer's test results. We
have reduced the potential burden associated with the voluntary
submittal by making the plan sufficiently general to cover multiple
engine families. We now envision an annual or maybe even a one-time
submission of the general plan with manufacturers only highlighting
deviations from the plan for a given engine family. The aforementioned
template will accommodate a discussion of any deviations.
In response to comments, we have also identified protocols
regarding the use of appropriate diesel fuels or biodiesel fuel blends
in test vehicles and addressing vehicles with onboard diagnostic system
(OBD) trouble codes or illuminated malfunction indicator lamps (MIL).
For test fuels, we proposed that manufacturers must establish
appropriate means to ensure that test vehicles are operated only on
diesel fuels meeting the requisite specifications for the model year in
which they were emissions certified. Engine manufacturers commented
that EPA should provide a mechanism or approach to ensure no vehicle
failures were due to bad fuel. Specifically, they requested that a real
pre-testing method of ensuring that a vehicle has been operated only on
proper diesel fuels must be developed and integrated into the in-use
testing program to avoid improper and wasteful testing. The
manufacturers also commented that the proposed provision would require
testing to be performed using fuel meeting the specifications for
certification fuel. Requirements to find and ensure the use of such
fuel will be overly burdensome. Finally, they recommended that the test
fuel provision be modified to specify that diesel fuel consistent with
the engine manufacturer's recommendations be used for testing. This was
a special concern related to the use of certain biodiesel fuel blends.
From the comments it is clear that engine manufacturers and EPA
share the same goals regarding the use of test fuels that are
appropriate for in-use testing, e.g., they are representative of
commercially available in-use fuels and a reasonable method be
identified to avoid wasteful testing on inappropriate fuels. After
further discussions with CARB and engine manufacturers on this issue,
we are adopting the following approach.
A prospective test vehicle's fuel tank(s) may be drained and
refilled with fuel conforming to the ASTM D975 specifications prior to
conducting any test. Manufacturers may not provide special fuel for in-
use emissions testing. If fuel is needed before initiating or during an
in-use test, it must be procured from a local retail establishment near
the site of vehicle procurement or screening, or along the test route.
Alternatively, the fuel may be drawn from a central fueling source
provided that the fuel used is representative of that which is
commercially available in the area where the vehicle is operated. If
the manufacturer can document that owner/operator of the prospective
test vehicle has an established pattern of using one or more specific
fuel additives and the fuel treatment is not prohibited in the
vehicle's owner or operator manual, the manufacturer may continue to
add that same fuel treatment for in-use testing. Also, the engine
manufacturer may take pre-test and post-test fuel samples from
recruited vehicles to ensure that appropriate fuel was used during in-
use emissions testing. All fuel test results must be reported to EPA.
Engine manufacturers have indicated a special concern with the use
of biodiesel fuel blends in prospective test vehicles. We want to make
it clear that the past use of biodiesel fuels is not grounds for
automatically rejecting the vehicle from the test program. Biodiesel-
fueled vehicles are acceptable if they use any biodiesel fuel blend
(e.g., biodiesel blends not in excess of B5) that is either expressly
allowed or not otherwise indicated as an unacceptable fuel in the
vehicle's owner or operator manual. A vehicle recruited into the
program with a biodiesel fuel blend that is either expressly allowed or
not otherwise indicated as an unacceptable fuel in the vehicle's owner
or operator manual, may not be rejected from testing. Of course,
vehicles using biodiesel fuel blends may have their fuel tank(s)
drained and refilled with ASTM D975 compliant fuel or an acceptable
biodiesel fuel prior to testing. The use of fuel additives is also
allowed as described above.
Finally, if a test vehicle fails the vehicle pass criteria and the
manufacturer can prove that a non-compliant ASTM diesel fuel or
prohibited biodiesel fuel blend was used at any time during the in-use
emissions test, that particular test may be voided. In this case, the
vehicle will be treated as described above.
Turning to the OBD trouble codes and MILs, we proposed to prohibit
manufacturers, as a general rule, from excluding vehicles from in-use
testing if the vehicle had an OBD trouble code or MIL illuminated.
Further, we proposed that manufacturers could not, as a general matter,
remedy the cause of the trouble code or MIL illumination prior to or
during in-use testing. However, the existence of these codes or lights
during the screening process may indicate that the vehicle has been
poorly maintained, tampered with, or improperly fueled. In these cases
the manufacturer could request that the vehicle be rejected from the
program. If a trouble code is set or malfunction light was displayed
after the vehicle has been accepted into the program, this also would
not be automatic grounds for eliminating a vehicle or aborting a test
once it has begun. Here the manufacturer could either test the vehicle
with the code or ask for approval to remedy the cause of the code if it
is maintenance related. We provided a number of examples illustrating
specific occurrences of OBD codes or MILs and the likely disposition of
those vehicles relative to the testing requirements.
[[Page 34606]]
The engine manufacturers commented that testing with MILs or codes
represents abnormal operation because owners of heavy-duty vehicles
attend to these problems promptly in order to protect their business
operations. Hence, they argued, that it does not make sense to require
testing of vehicles with these conditions unremedied and it is
inconsistent with the settlement document that calls for testing
vehicles during their ``normal operations.'' The manufacturers also
stated that there is no comprehensive OBD program aimed at flagging
emission exceedences or specific flaws in an engine's emission control
system. Therefore, they believed it is unfair to presume that an
activated MIL or trouble code necessarily would signify an emissions-
related issue. Finally, manufacturers claimed that having to ask EPA
for permission to reject or repair a vehicle would cause delays in
conducting the program and be unnecessarily expensive.
Although there is currently no federal OBD requirement for heavy-
duty diesel engines, EPA is in the early stages of developing such a
requirement. The heavy-duty in-use testing program needs to be designed
to accommodate the expected future OBD regulations. Further,
manufacturers currently use diagnostic routines systems to varying
degrees to assist service technicians in the repair of today's engines.
To the extent those diagnostic routines identify potential problems
with the emissions control system, it is appropriate for that
information to be considered in the in-use test program, even if the
OBD system is not designed to flag emission exceedences. At a minimum,
even today's OBD systems can potentially identify flaws in an engine's
emission control system that could cause an emissions exceedence. We
continue to believe that OBD information can potentially be valuable in
identifying potential in-use emissions exceedences and understanding
their cause.
As in the proposal, EPA will require manufacturers to supply known
OBD information both with regard to the history of the vehicles and
their performance once accepted in to the manufacturer-run in-use
testing program. This information is important in that it may indicate
emissions-related problems relevant to whether the engines have been
properly designed to meet emission standards for the useful life of the
engine and whether the engines are in fact meeting such standards
during the useful life of the engine.
However, EPA agrees with the comment that owners of heavy-duty
vehicles are instructed and are likely to attend to OBD related
problems promptly. Therefore, manufacturers will not be required to
test vehicles with a MIL illuminated or a trouble code set. We believe
it is more appropriate to review emissions-related concerns identified
by the OBD system without requiring manufacturers to use such vehicles
in the in-use testing program, and the information that we receive from
manufacturers will aid in this review. At their discretion, a
manufacturer may generally test the vehicle with the MIL illuminated or
trouble code stored, repair the vehicle and then test it (without EPA
approval), or reject the vehicle from the test program as follows:
1. If a vehicle is received into the program and the length of MIL
illumination or trouble code storage is consistent with proper
maintenance and use, then the vehicle must be tested as received or
repaired prior to testing. If the vehicle is repaired, the manufacturer
must report the repair and the associated MIL illumination or trouble
code to EPA;
2. If the vehicle is received into the program and the length of
MIL illumination or trouble code storage is inconsistent with proper
maintenance and use, the manufacturer has three options. First, test
the vehicle as received. Second, repair the vehicle prior to testing
and report the repair and associated MIL illumination or trouble code
to EPA. Third, reject the vehicle from the test program and replace it
with another vehicle. The manufacturer must report the repaired or
rejected vehicle and its associated MIL illumination or trouble code to
EPA; and
3. If a MIL goes on or a trouble code is set during an in-use test,
the manufacturer has two options. First, stop the test, repair the
vehicle, and re-start the testing. In this case, only the portion of
the full test results without the MIL illuminated or trouble code set
would be used in the vehicle pass determination. Second, stop the test,
repair the vehicle, and initiate a new test. In this case, only the
post-repair test results would be used in the vehicle pass
determination. Again, any repair, and the associated MIL illumination
or trouble code must still be reported to EPA.
We intend to have developed a guidance that addresses a number of
issues pertaining to vehicle recruitment, screening, maintenance, and
testing. The document will also provide guidance in identifying the
activity thresholds for OBD trouble codes and MIL illumination referred
to above.
We also received several additional comments related to vehicle
acceptance, vehicle selection, screening, and maintenance. First, we
proposed to require that a manufacturer notify us prior to rejecting a
prospective vehicle from the program for reasons other than failing to
meet acceptance criteria contained in the general plan. The engine
manufacturers commented that they should not be required to notify EPA
that a candidate vehicle has been rejected if the owner decides not to
make the vehicle available for testing. We agree that our proposal to
require advanced notification in this instance could be burdensome. We
have amended the regulations to clarify that no notification is
required prior to rejecting a vehicle if the owner refuses to
participate in the program. We have also clarified the regulations to
require that a manufacturer must document and report the rejection to
EPA as part of their normal reporting requirements under the program.
The second comment relates to making sure that the engines in the
selected test vehicles are dissimilar. We proposed two basic different
types of requirements to help ensure that the vehicles selected for
testing within an engine family displayed variations in operating
regimes and other usage characteristics. First, manufacturers were to
recruit test vehicles from at least two different sources. Second,
manufacturers were to submit a general test plan that was designed, in
part, to identify if there was any bias, i.e., pre-selection, in a
manufacturer's recruiting program.
The Pennsylvania Department of Environmental Protection (PDEP)
asked how we would ensure that a varying sample of engines within an
engine family were tested. Specifically, they hypothesized that one
fleet may have 10 vehicles with the same engine family, and that the
engines may all have been produced on the same day under the same
conditions. Further, PDEP suggested that it may be tempting for an
engine manufacturer to test all these very similar engines. Therefore,
they wondered if EPA had a strategy to ensure that test engines were
produced at different times and for different fleets.
The concern expressed by PDEP is unlikely to be encountered since
manufacturers are required to select vehicles from at least two
different sources and submit to EPA detailed information on the
vehicles they select. Further, even though the general plan is now a
voluntary submission, we expect that manufacturers will normally
provide this information. This will help ensure the manufacturer test
programs
[[Page 34607]]
are reasonably diverse in test vehicles and conditions. Finally, EPA
has the authority to conduct its own in-use testing if it has concerns
with the representativeness of the manufacturers' test results.
The third comment regards setting adjustable parameters. We
proposed that a manufacturer must set any adjustable parameter to the
midpoint of its adjustable range prior to testing. Engine manufacturers
asked that the requirement be expanded to allow an adjustment to the
manufacturer's recommended setting. We agree with the comment and now
allow an adjustable parameter to be adjusted to the manufacturer's
recommended setting or the midpoint of its adjustable range prior to
testing.
A fourth comment questions whether engine operating controls might
be illegally recalibrated prior to testing. We proposed that engine
manufacturers conduct a thorough screening of each engine before making
any allowable adjustment or maintenance prior to testing. The results
of this screening were to be reported to EPA. Also, manufacturers were
required to screen each selected vehicle for proper use and maintenance
and reject those vehicles which have not been properly maintained and
used.
The PDEP commented that the process of implementing supplemental
test procedures, e.g., the NTE, was developed because engine
manufacturers programmed their engines to recognize when they were
being tested by the federal test procedure and when they were traveling
on the highway. They asked if we had contingencies to stop engine
manufacturers from re-flashing the vehicle's electronic control module
in order to pass the screening process.
Obviously, a manufacturer that ``reflashed'' a vehicle's electronic
control module during the screening process would not be generating a
representative sample of emission results which is required when
deciding whether an engine family is complying with the emissions
standards. Further, that manufacturer could be modifying the emissions
control system such that the engine is no longer covered by a
certificate of conformity. In that situation, an engine could be in
violation of Section 203 of the Clean Air Act and subject to civil
penalties. We have the authority to void the certificate of conformity
for an engine family if the engine manufacturer did not meet its
obligation under the in-use testing rules. We also require
manufacturers to report any steps they take to maintain, adjust,
modify, or repair the vehicle or its engine prior to testing.
Falsifying the emissions performance of an engine could constitute
ground for voiding a certificate. A void certificate also results in a
violation of Section 203 of the Clean Air Act and possible civil
penalties because any sold engines are no longer covered by a
certificate of conformity.
Finally, we do not anticipate manufacturers resorting to such
practices and expect to physically participate in the manufacturer
testing programs to some extent, including during vehicle screening and
maintenance prior to testing. Finally, EPA will continue to conduct
some level of its own in-use testing to validate the manufacturer's
test results and gain confidence in their test programs.
J. Test Conditions
For all Phase 1 testing, we are requiring that test vehicles must
to be operated over normal driving routes, carrying routine loads
during normal atmospheric/environmental conditions, with the vehicle's
normal owner/operator doing the driving. Our intent is to record the
emissions from the test vehicles as they are used and operated on a
normal day-to-day basis.
For Phase 2 testing, we may direct engine manufacturers to use a
generic or specific test route and other conditions that replicate
those observed in the Phase 1 testing that indicated a potential
nonconformity. These other conditions may include but not be limited to
specifying the State and/or contiguous States in which testing must be
performed, or specifying the time period (of no less than 3 months in
duration during which the testing must be performed. (This latter
condition may also be used to ensure prompt testing of Phase 2 vehicles
or to ensure testing during periods of particular atmospheric
conditions.) In deciding to make these elections, we will take into
account lead time and vehicle availability constraints.
We requested comment on whether EPA should similarly be allowed to
direct a manufacturer to test specific engine configurations, test
routes, and driving conditions for Phase 1 testing when we have
particular information suggesting that these stipulations may help
focus testing on areas where EPA has particular emission-related
concerns. We believed that such an initial focus might not only improve
the overall effectiveness of the in-use program, but might reduce the
number of tests a manufacturer may otherwise need to conduct if Phase 2
testing is conducted for any reason.
Engine manufacturers commented that Phase 1 testing is meant to
quickly screen vehicles for NTE compliance. Further, the manufacturers
argued that specifying detailed test conditions for Phase 1 adds
unacceptable complexities, time constraints, costs, and vehicle
recruitment difficulties, and should not be adopted. After reviewing
the engine manufacturers objections, we are not adopting a ``directed''
testing allowance in Phase 1.
K. Reporting Requirements
1. Comprehensive In-Use Testing Reports
Engine manufacturers will report test data and other relevant
information to EPA on a regular basis. Specifically, manufacturers must
send us reports for all engines tested during a calendar year quarter
no later than 30 days after the quarter ends. Alternatively,
manufacturers may send us a report for individual engines within 30
days after testing is completed.
These reports will be comprehensive in scope. Manufacturers must
detail all emissions data, engine operating parameters, test
conditions, test equipment specifications, vehicle and engine
information generated during the manufacturer test program (e.g.,
information on vehicle maintenance and usage history with reasons for
rejected vehicles, restorative maintenance performed prior to testing),
vehicle pass results, etc. Engine operating parameters include all
information that is electronically sensed, measured, calculated, or
otherwise stored by the engine's onboard computer. This must include,
but is not limited to, engine speed, engine torque or brake specific
fuel consumption, engine coolant temperature, intake manifold
temperature, intake manifold pressure, and any parameter sensed or
controlled in order to modulate the emissions control system.
Manufacturers must also report any parameters used to modulate the
emissions control system so that we can readily identify operation
where an approved deficiency or carve-out applies, and the state of the
engine during that operation.
Engine manufacturers will follow a standardized, electronic
reporting format. We are currently developing the exact content and
form of the reports with CARB and the engine manufacturers.
Participation by CARB ensured that the reporting requirements are
nationally consistent when it establishes an in-use NTE testing program
of its own. The reporting requirements are detailed in the regulatory
text accompanying today's
[[Page 34608]]
proposed rule. Additional details, including the final reporting
format, will be published separately by EPA as a guidance document.
Engine manufacturers commented that our list of proposed data
requirements was too extensive and overly burdensome. However, they
acknowledged that the negotiated outline specifies the submission of a
``* * * comprehensive report * * *.'' The manufacturers also stated
that the negotiated agreement called for a standardized reporting
format to be jointly developed by EPA/CARB and the engine
manufacturers. They noted that the proposed reporting format was not
developed in the prescribed manner. Finally, they commented that until
a jointly developed format has been completed, no final rule should be
promulgated.
As noted above, we are developing the reporting format with the
assistance of the engine manufacturers. We have entirely eliminated
some of the items that we proposed manufacturers report based on their
comments. These items have generally been moved to the record keeping
requirements.
The engine manufacturers also commented that it may be more
appropriate for manufacturers to submit reports upon the completion of
Phase 1 or Phase 2 testing for a specific engine family instead of
submitting reports on a calendar year basis for all engines tested
during that quarter. They argued that this would consolidate
information from a single phase of testing into a single report and
would avoid the illogical inclusion of dissociated information from
multiple families into the same report. Further, the manufacturers felt
this would also ensure more timely reporting of information on
completion of a phase of testing. Accordingly, they asked for the
option of reporting either on a quarterly basis, as specified in the
proposal, or 30 days after the completion of a specific phase of
testing is concluded.
We envision that manufacturers will conduct engine family
evaluations concurrently and that reporting in-use testing results on a
calendar basis will provide the most timely and effective status
updates of those testing programs. We also expect manufacturer testing
to be continuous over multiple calendar quarters. A number of
individual vehicles will likely be tested over that span of calendar
quarters before a given phase of testing is complete. Waiting until the
end of a phase of may not provide EPA sufficient opportunity to follow
the progress of ongoing test programs. Our database will be designed to
accept test results as they become available and update the database
records in a logical manner for easy reading.
As mentioned previously, we are allowing 18 months for the in-use
testing of any engine family be completed and fully reported to provide
manufacturers with adequate lead time to properly planning and
conducting the in-use test program. A manufacturer may request up to
six addition months to complete and report Phase 2 test results if
there is a reasonable basis for needing more time. Further, a
manufacturer may request an additional six month extension. A
successful request for this added extension will be limited to
extraordinary circumstances beyond the control of the manufacturer and
its customers whose vehicles are being tested. The testing and
reporting period begins from the date EPA officially notifies the
manufacturer that an engine family has been designated for in-use
testing.
Engine manufacturers commented that they were dissatisfied with
both the requirement to complete all testing of a designated engine
family within 18 months, and the option to request a six-month
extension for Phase 2 testing if justifiable. They concluded that it
may be impossible to meet these deadlines in some cases, although no
specific examples were provided. Instead, they asked that the provision
be deleted or modified to allow unlimited extensions where
circumstances dictate.
We believe that allowing unlimited extensions seems unnecessary and
could result in engine families exhausting their useful lives before
meaningful compliance data is generated. We also think that 18 months
is sufficient to complete testing under normal circumstances.
Manufacturers agreed to this in the settlement document, which states
that data from the testing of a designated heavy-duty on-highway diesel
engine family will be completed and reported to EPA and CARB within 18
months from of the designation of that family by EPA/CARB. In the
proposal, we went even further and acknowledged there may be situations
where an additional 6 months could be warranted due to unforseen and
infrequent events. Therefore, we adopted the test and reporting period
as proposed.
Nonetheless, we acknowledge that there might be some instances when
unforseen complications may arise. In order to ensure the test program
is successfully initiated with minimum burden to manufacturers, we will
remain open to a request from any manufacturer for additional time
beyond the 6 month extension. A successful request for this added
extension will be limited to extraordinary circumstances beyond the
control of the manufacturer and its customers whose vehicles are being
tested. The threshold for such consideration is intended to be
extremely high, and the frequency of such manufacturer requests, much
less EPA approval, extremely low. In no instance, would the second
deadline extension exceed 6 months. Finally, to the extent that any
such additional extensions are needed, we would expect these to become
non-existent as manufacturers gain experience with the in-use test
program.
We are also adopting our proposal that allows us to obtain more
information from the manufacturer than is specified in the reporting
requirements if it is needed to evaluate whether an engine family meets
the in-use testing requirements. Engine manufacturers commented that
this allowance was an open-ended requirement that was unreasonable and
unacceptable.
The allowance for us to request additional information is a general
requirement common to all of EPA's regulations. There is nothing unique
about the heavy-duty in-use test program that would diminish the
important of this requirement. Therefore, we have retained it in the
final rule.
2. Notification of Individual Vehicle Failures
We are requiring that manufacturers must ``quickly'' notify us when
certain individual vehicles fail the vehicle pass criteria. The
accelerated reporting period for failing vehicles is designed to afford
EPA the opportunity to participate in the diagnosis of vehicle failures
and any resulting follow-up activities. Specifically, we are requiring
such notifications at two different points in the testing scheme. The
first is when an engine family has experienced three failures in Phase
1 testing. This is the point where a manufacturer is fully committed to
testing a total of 10 vehicles. Further, this is the threshold where,
at the conclusion of Phase 1 testing, a manufacturer must join EPA in
follow-up discussions to determine whether or not any further testing
(i.e., Phase 2), investigations, data submissions, or other actions may
be warranted. We require that a manufacturer notify us by email within
15 days when the initial review of the test data for a selected engine
family indicates that a third failure in Phase 1 testing has occurred.
[[Page 34609]]
The second point is each time a vehicle failure occurs during Phase
2 testing. In this case, we require a more immediate notification
because of the increased significance of such failures. These failures
are significant because of the greater likelihood of a possible
nonconformance and the possibility that testing needs to be focused on
specific vehicle configurations, environmental conditions, etc. In this
phase of the program, we will require that a manufacturer notify us by
email within 3 days when the initial review of the test data for a
selected engine family indicates that a vehicle failure has occurred in
Phase 2 testing.
In the proposal, we specified a more comprehensive scheme for
rapidly reporting vehicle failures. Each individual vehicle failure
needed to be reported to us within 15 days of conducting the emissions
test. The report was comprehensive in nature. It included detailed
emissions and engine data from the test in addition to any diagnostic
results and conclusions. The manufacturers opposed the requirement,
stating that the provision was unduly burdensome and unnecessary.
We continue to find that accelerated reporting of vehicle failures
provides us with an important opportunity to participate in the
diagnosis of failing vehicles and any resulting follow-up activities.
This is no different than the opportunity we provide manufacturers in
our own test programs. In light of the comment, however, we have
reconsidered how our objective can be achieved while minimizing any
associated reporting burden. As a result, we eliminated the
comprehensive nature of the reporting requirement and made the
requirement a simple notification when a potential failure has been
observed. We also reduced the frequency of such notifications to the
two points in the testing scheme as described above. These two points
in the testing scheme were selected because that is where failures
clearly become of sufficient interest to us that we may want to have
the opportunity to participate in the test program.
3. Carve Outs, Deficiencies, or Other NTE Control Area Exclusions
Depending on the applicable standards, several provisions in the
existing heavy-duty diesel engine regulations allow a manufacturer to
temporarily exceed the NTE standards under certain limited
circumstances, or otherwise exclude defined regions of the NTE engine
control zone from NTE compliance. (See 65 FR 59912 and 59914 (October
6, 2000), and 66 FR 5040 (January 18, 2001)). These exceptions are also
allowed in determining if a vehicle passes the vehicle pass criteria as
described in section II. E. All such exclusions and associated test
data must be fully described and submitted to us as part of the
manufacturer's quarterly or 30-day emissions test result report that is
required under the terms of the program.
More specifically, we are requiring that a manufacturer's report
for each engine tested must describe the parameters that activate and
de-activate each NTE deficiency as well as the engine load and speed
points used to define an NTE carve-out tested under the program. This
information must generally be in a form that can easily be used to
determine whether a particular deficiency or carve-out was encountered
when evaluating 1 Hz NTE test results. The information must be in a
form that can be either loaded directly in EPA's electronic database or
readily converted by us into the required data input structure.
For each NTE deficiency, the manufacturer must provide every engine
and operational parameter(s) used to activate and deactivate the
deficiency as well as the associated activation and deactivation
thresholds. If more than one parameter is used to activate or
deactivate a deficiency, the manufacturer must supply the logic that
defines how those parameters interact. For any approved carve-out,
manufacturers must provide the equation or equations that define the
carve-out region as a function of engine load and speed. The engine
computer must broadcast at 1 Hz, each parameter used to activate or
deactivate a deficiency. EPA, CARB, and the engine manufacturers will
jointly develop a template for submitting the information to EPA and
CARB. This template will be included in a guidance document on this
subject.
We requested comment on whether manufacturers should be required to
electronically identify when the engine is operating in the area of an
approved carve-out or deficiency and report that information as a data
output to the portable emissions measurement systems. Flagging the
presence of a carve-out or deficiency in such a manner appeared
feasible as a relatively minor revision to the engine's on-board
computer software. We envisioned the software changes would be limited
to manipulating already broadcast or stored parameters. Electronic
reporting of this information would ease the data analysis for the
engines tested in the manufacturer-run, in-use testing program, and
allow ready access to the same type of information for engines that may
be tested in our own program using portable emission measurement
systems.
Manufacturers commented that the requirement was too costly and
time intensive. They stated that valuable electronic control module
(ECM) processing capacity would be used just to provide an ``easy''
electronic indicator for NTE operation. Manufacturers provided no data
or other information to support their claim that the requirement was
``too costly and time intensive.'' Upon further consideration, we
recognize requiring manufacturers to add the electronic capability to
flag NTE deficiencies and carve-outs as part of this rulemaking might
present an unreasonable burden from the perspective of lead-time for
the 2007 model year, which is less then two calender years away. We
continue to believe that electronically reporting NTE deficiency and 5
percent limited testing region flags on a real time basis is necessary
to improve the efficiency of collecting and analyzing in-use test data.
EPA believes that the 2010 time frame would provide adequate time for
manufacturers to begin implementing such an ECM-based reporting
requirement. We intend to pursue this in a future rulemaking regarding
onboard diagnostic systems for heavy-duty vehicles.
Regarding the availability of such information for use in our own
in-use testing program, we can always request such information from a
manufacturer in lieu of receiving it as part of the ECM read out.
However, we want to ensure that these requests receive special handling
to expedite our testing. We are, therefore, requiring that
manufacturers provide engine information which clearly identifies the
parameters defining all NTE deficiencies and parameters defining all
NTE carve-outs for an engine family and associated power level when
requested. Further, that the deficiencies and carve outs must be
reported in sufficient detail for us to determine if a particular
deficiency or carve-out will be encountered in the emission test data
from the portable emission-sampling equipment and field-testing
procedures. Such information is to be provided within 60 days of the
request from EPA.
4. Incomplete, Invalid, or Voluntary Tests
We proposed that engine manufacturers must report all results from
emissions testing, including incomplete tests, invalid tests, and
additional tests that are voluntarily conducted.
[[Page 34610]]
The engine manufacturers objected to reporting results from the
types of tests described above. They stated that such a requirement is
overly burdensome and intrudes on a manufacturer's right to conduct
voluntary tests without EPA ``supervision.'' Further, the manufacturers
also specifically objected to reporting results when Phase 2 testing
was voluntarily undertaken.
We continue to believe that the results of incomplete and invalid
tests can yield valuable information regarding NTE emissions compliance
and that it is legitimate to have access to this information within the
context of the in-use program. However, to keep the reporting burden to
a minimum, we will only require manufacturers to notify us in their
formal reports when such tests were conducted for a selected engine
family. Further, manufacturers will simply be required to keep all
related test data and other relevant information as part of their
recordkeeping in case we ask for it.
We disagree with the engine manufacturers suggestion that the
results of testing should not be reported to EPA when a manufacturer
voluntarily undertakes Phase 2 testing. In this instance, a
manufacturer would be conducting the testing as a consequence of the
Phase 1 test results. This follow-on testing is clearly a logical next
step in the manufacturer-run, in-use testing program, and the results
of such testing must be properly reported to EPA.
Regarding other voluntary tests that a manufacturer may conduct
outside of the manufacturer-run, in-use testing program, we find that
it is important for us to be aware when a manufacturer conducts such
testing. Beyond providing valuable information, we want to prevent a
situation where voluntary testing might be interpreted as having been
conducted to screen test vehicles for passing results, which might then
be submitted to us as valid tests under the in-use program. We do agree
with the manufacturers, however, to the extend that our proposal could
be interpreted as too broad and overly burdensome.
To accommodate these legitimate concerns, we have refined our
requirements in this area as follows. First, we will limit this
requirement to voluntary tests conducted on the same engine families
that are being tested under the in-use test program. Second, we will
focus the requirement on the period between the time the family is
first selected for testing, until the final results of all testing for
that family are reported to us. Third, as described above for invalid
and incomplete tests, we will only require manufacturers to notify us
in their formal reports when such tests were conducted for a selected
engine family. The notification must clearly describe the purpose of
the voluntary testing and how it is unrelated to the vehicle
recruitment, screening, and testing conducted under the manufacturer-
run, in-use testing program. Fourth, and finally, manufacturers will
simply be required to keep all test data and other relevant information
as part of their recordkeeping in case we ask to review it.
L. Measurement of Emissions
We are adopting the test procedures in 40 CFR part 1065 subpart J,
``Field Testing'' for conducting any emissions testing required in this
program, as well as any other onboard testing required for heavy-duty
engines under part 86, subpart N. These revised requirements are being
promulgated as a companion rule to today's final manufacturer-run, in-
use testing rulemaking.
We proposed to adopt the test procedures in part 1065, subpart J,
``Field Testing'' for conducting any emissions testing required in the
in-use testing program, as well as any other onboard testing required
for heavy-duty engines under part 86, subpart N. In our proposal, we
noted that changes were being made to the then current version of part
1065, and that those revisions were being published in a separate
companion Notice of Proposed Rulemaking (NPRM). The relevant proposed
test procedures were generally described, and we asked that comments on
the companion NPRM be directed toward that notice.
Manufacturers commented that the comment period on the in-use
testing program be extended to align it with that of the companion test
procedure proposal. They argued that the field testing provision had
not yet been published and that this made it impossible to comment in
total on the proposed in-use testing program. We chose not to extend
the formal comment period for this rule, but have continued to exchange
information with affected companies over an extended period up to the
conclusion of the final rule. Manufacturers were able to provide any
comments regarding the interaction of the regulations for this rule and
the rule revising part 1065 during the comment period for that rule.
There were no comments on that rule that would indicate that the
effectiveness of this rule will be undermined by the proposals in that
rule. We have addressed each of the comments submitted, as described
elsewhere in this document, and in the companion rulemaking to adopt
changes to the test procedures in 40 CFR part 1065.
1. Pollutants and Other Emissions
We are requiring the in-use measurement of the following pollutants
from heavy-duty diesel engines: Non-methane hydrocarbons (NMHC), total
hydrocarbons (THC), carbon monoxide (CO), oxides of nitrogen
(NOX), and particulate matter (PM). We are also requiring
the measurement of carbon dioxide (CO2) and oxygen
(O2) as a component of test measurement specifications and
as a means of assuring quality control. Recognizing that experience may
show that the effectiveness, durability and overall performance of new
engine technologies and exhaust aftertreatment systems may demonstrate
that in-use testing for certain pollutants is unnecessary, we will
consider requests from the engine manufacturers to discontinue
reporting and/or measurement of one or more pollutants from some or all
engines based on future test experience.
In the proposal, we requested comments on requiring the in-use
measurement of NMHC because it was not explicitly listed in the
settlement agreement. We noted that the 2007 hydrocarbon standards for
heavy-duty engines are written in terms of NMHC (or NMHCE) not THC. In
addition, recent testing indicates that the traditional relationship of
NMHC to THC in diesel exhaust (typically, NMHC is 98% of THC) is no
longer applicable when aftertreatment like PM filters are used.
Therefore, there is less of an exact correlation between THC and NMHC
emissions and the traditional way of correlating such emissions in our
regulations could lead to overestimation of NMHC emissions. Finally,
NMHC can be measured on-vehicle without significant further effort. As
a result, we believed the measurement of NMHC was justified.
Engine manufacturers objected to mandatory NMHC measurement. They
also objected to being required to measure THC from diesel engines with
catalyzed PM filters, arguing that the emission control technology
results in negligible hydrocarbon emissions. However, the engine
manufacturers wanted to have the option of measuring NMHC instead of
THC if hydrocarbon measurement were required.
We are requiring the measurement of hydrocarbons in the in-use
testing program and because NMHC is a regulated emission with an
associated NTE standard, it must be reported. Commercially available
portable measurement systems already report NMHC as the difference
between
[[Page 34611]]
measured THC and methane (CH4) via dual FID/cutter technology. This
measurement technology already meets all the NMHC requirements in Part
1065. Additionally, part 1065 provides the flexibility to report NMHC
as the difference between measured THC and measured methane (CH4), or
it may be reported as 0.98*THC. Therefore, manufacturers may optionally
measure THC and report NMHC as 0.98*THC. However, we do not recommend
this approach given the commercial availability of suitable portable
technology that would yield a more accurate NMHC measurement.
Regarding the comment about ``negligible NMHC'' emissions, we
believe that certain engines and exhaust aftertreatment systems can
emit NMHC emissions at or above the NTE standard. This is particularly
possible if the aftertreatment technology uses a hydrocarbon-based
reducing agent, e.g., diesel fuel, to ``regenerate'' the aftertreatment
system. Nonetheless, in cases where a manufacturer can demonstrate that
and engine and aftertreatment system combination negligible NMHC
emissions, the manufacturer may petition EPA to waive associated
measurement requirement, as we proposed and are now adopting.
Engine manufacturers also requested that hydrocarbon measurement
not be required due to safety concerns with the hydrocarbon fuel used
by the flame ionization detector (FID) in the portable analyzer to
measure that pollutant. We have been using a unit produced by one
manufacturer in our own in-use testing that is approved as safe by the
Department of Transportation (DOT) for on-vehicle use. We expect that
other manufacturers either have or will also DOT certify their devices
for on-board emission measurement. In fact, we would not recommend
using any portable device that utilizes FID fuel if it is not certified
in conformance with DOT standards for such testing. Therefore, we
disagree that the use of FID technology in the in-use test program
necessarily poses a safety concern.
Manufacturers also commented that we should issue guidance that
outlines reasonable conditions and procedures for manufacturers to
follow in requesting an emission measurement waiver. We do not believe
that a specific guidance document on this issue is necessary. The basic
conditions and procedures for requesting an EPA waiver to avoid
measuring a pollutant is obvious enough. Waivers will be reviewed on a
case-by-case basis.
2. Portable Emission Measurement Systems--Status and Availability
Portable emission measurement systems will be used to measure the
emissions and activity of vehicles tested in this program. Portable
measurement systems have been under development for a little more than
ten years. Currently, the status of these devices relative to their
development and availability is different for gaseous and particulate
emissions. Studies conducted by EPA, CARB, and the product
manufacturers have shown that the technologies used in portable systems
for gaseous emissions have been effective in accurately measuring
emissions from in-use motor vehicles under the various conditions that
could be expected in this test program. More specifically, commercial
portable measurement systems have been available from a number of
manufacturers since 2002 that measure THC, CO, and NOX
emissions at the requisite exhaust concentrations associated with 2007
and later model year NTE standards. In 2004, units were introduced that
measure NMHC, although some extra work is being instituted to verify
the accuracy and precision of these new systems. Also, EPA is working
on a program, with cooperation from ARB and the engine manufacturers,
under which portable emission measurement systems will undergo
comprehensive testing, including the identification of data-driven
``measurement allowances.'' A measurement allowance is an emissions-
specific, brake-specific value that will be added to the NTE standard
to determine an NTE threshold for the purposes of the manufacturer in-
use testing program. Its purpose is to account for any differences
between the accuracy of the portable measurement systems in the field
and the accuracy of laboratory measurement systems in a lab. Additional
details on this latter program are presented in section II. L. 3.
The development of portable systems for measuring PM has proven to
be more challenging than the development of similar systems for
measuring gaseous emissions. Currently, prototype portable systems for
measuring PM are available from equipment manufacturers, and we have
tested them in the laboratory with encouraging results. This
demonstrates that the overall technology has been identified, although
more work is needed to demonstrate its accuracy and efficacy in the
laboratory and in the field for the purposes of the in-use testing
program. In addition, work is continuing to miniaturize the on-board
sampling devices and develop suitable exhaust dilution sampling
techniques and hardware.
In our proposal, we acknowledged the significance of the
development effort for PM portable measurement systems, especially with
regard to being able to start the pilot program in 2005. Manufacturers
echoed this concern in their comments. Specifically, we stated that if
PM systems were not going to be available for the 2005 pilot program,
we would consider delaying the PM requirement until 2006 or 2007, or
temporarily relaxing the proposed equipment measurement tolerances.
Consistent with that position, our current assessment of the state of
portable PM emissions measurement systems has resulted in delaying the
start of the pilot and fully enforceable programs for PM by one year
from the dates contained in the proposed rulemaking.
We believe that the one-year delay for the PM pilot program (i.e.,
2006) will result in the availability of prototype portable devices
capable of measuring these emissions as required. We also believe that
the one-year delay for the fully enforceable program (i.e., 2008) will
result in useable, accurate, and precise portable units in time for use
in that program. Our position is based on work that EPA, CARB,
equipment manufacturers, and the engine manufacturers either have
underway or have committed to performing to resolve the remaining
development and verification issues, as described below. However, in
recognition of the remaining uncertainties associated with these
efforts, we have added a provision to the regulations that would
suspend the in-use test program as it applies to PM measurement if we
determine that fundamental technical problems with portable in-use PM
measurement systems are not resolvable in a reasonable time.
As noted above, prototype portable units for measuring PM have been
successfully tested in the laboratory, but further development work is
needed to resolve some key challenges. The most significant of these
are: Quantifying or weighing 30-second samples of semi-volatile
hydrocarbons and dilute sulfuric acid PM at the NTE standard (i.e.,
about 250 nanograms), proportionally diluting a partial flow of raw
exhaust in order to sample PM at the same conditions as our laboratory
procedures, and establishing a standard way of evaluating whether or
not candidate systems actually meet these challenges. The work to
resolve these remaining issues and to verify portable PM measurement
technology in terms of
[[Page 34612]]
usability, accuracy and precision, can generally be divided into four
program areas.
The first is our ongoing program that takes prototype portable PM
measurement technology, which equipment manufacturers continue to
refine, and compare the measurement capability of that hardware with
current laboratory measurements. In this regard, we have recently
acquired more sophisticated prototype devices for testing. We are
evaluating a laboratory-scale quartz crystal microbalance (QCM) versus
our laboratory PM measurement procedures. This evaluation is intended
to verify whether or not prototype QCM technology reports PM similarly
to the laboratory's reported values. We are confident that the QCM is a
viable technology for the following reasons:
a. The QCM measures PM by electrostatically depositing mass on the
QCM, and as PM deposits on the QCM its oscillating frequency changes in
proportion to the total mass of the deposited PM. Because the QCM
measures total PM mass directly by inertial acceleration, the QCM
measures the same physical property; namely total mass, as compared to
our laboratory filter-based procedure, which measures mass by
gravitational acceleration (via a PM microbalance).
b. The design and construction of this technology is of a
reasonable size and weight, and its power consumption indicates that
this technology is likely to be sufficiently portable for on-vehicle
use.
c. This PM PEMS technology is also specified to allow up to eight
hours of continuous unattended operation so it will be appropriate for
the HDIUT program.
d. Because QCM technology can measure ``nano-gram'' levels of PM,
we believe that it is sufficiently sensitive to measure 30-second
samples of PM at the NTE standard. For example, under typical dilution
conditions in the NTE, 30 seconds of PM at the 2007 NTE standard (0.03
g/hp-hr) is in the range of 200 to 300 nanograms when sampled at one
liter per minute, which is the sample rate of the QCM.
We intend to expand the work described above to include an already
available portable partial-flow dilution system and a fully portable
QCM.
The second is another internal EPA program that we anticipate
beginning in the near future. In this program we will intend to develop
techniques to generate ``reference PM'' in order to fully evaluate
portable measurement systems using particles with similar physical
characteristics and at the expected PM levels associated with the NTE
standard and over intervals as short as 30 seconds.
The third is the PM pilot program. In the pilot, engine
manufacturers will use best-available portable measurement systems as
part of their testing. This program will give engine manufacturers an
opportunity to evaluate the usability of these portable devices. We
expect that information gained from this pilot program will be helpful
for both EPA, equipment manufacturers, and engine manufacturers to
prepare for the 2008 enforceable PM program.
The fourth is our cooperative research, development, and
demonstration effort with CARB and the engine manufacturers. Under this
comprehensive program, portable PM emission measurement systems will be
rigorously tested and data-driven ``measurement allowances'' will be
identified. Additional details on this program are presented in section
II.L.3.
Based on the development and demonstration programs described
above, as well as the ongoing work of equipment manufacturers, we
remain optimistic that portable systems for PM testing will be
available for the pilot program in 2006 and the fully enforceable in-
use program starting in 2008.
The technical support document that accompanies today's final
rulemaking contains more information on the status and development of
portable emission measurement systems.
Engine manufacturers had some specific comments regarding the
availability of portable emission measurement systems. Detroit Diesel
Corporation commented that EPA failed to recognize that in order to
begin production of 2007 model year engines with an appropriate level
of confidence that those engines will meet in-use requirements, the
availability of in-use measurement equipment will be required long
before production of those engines begins. Specifically, the company
referred to the need to conduct field validation of final engine
calibrations as early as the winter of 2005/2006. Further, that testing
would require equipment that has the capability for accurate
measurement at below 1 gram/bhp-hr NOX development targets.
Therefore, DDC concluded that it is unreasonable to expect that
equipment being qualified at the 2.5 gram NOX level should
also be adequate for development of engines at a 1 gram NOX
level, and even more unreasonable to consider its use for developing at
levels below the 0.2 gram NOX standard.
Our assessment shows that portable measurement systems with the
capability to reliably measure NOX emission at the 2 g/bhp-
hr level have been commercially available since 2002. Given that engine
manufacturers are likely to certify MY2007-MY2010 engines at around the
1.1-1.3 g/hp-hr level, the corresponding NTE standard from MY2007-2010
will be about 2 g/hp-hr, depending upon vehicle mileage and other NTE
flexibilities. Therefore, manufacturers could have started such field
validation of final engine calibrations as early as about 2002. In
fact, in 2003 Detroit Diesel Corporation gave public presentations
showing how they are already using PEMS to field validate final engine
calibrations. Therefore, we disagree with the comment in this area.
Also, as described in the previous section (see section II.L.2.),
portable units that measure THC and CO have also been available since
2002. Units capable of measuring NMHC have been available since 2004.
(Further work is needed on these instruments to determine their
accuracy and precision, but compliance with the associated NTE standard
can optionally be demonstrated by measuring THC, as explained in
section II.L.1. of this preamble.)
Based on other comments, we acknowledge that compliance with NTE
standards will require design engineers to better understand their
engines' emission behavior over a wide range of possible engine
operation, but we do not feel that access to field-testing systems at
an early stage of engine development is a prerequisite for the
successful development of engines that meet the NTE standards. Though
claims have been made that NTE standards might be interpreted to cover
a theoretically infinite degree of variability during in-use operation,
we expect that by evaluating a range of in-use duty cycles a consistent
level of control for any additional operation may be predicted. This
evaluation may be conducted solely in a laboratory by making careful
measurements over a statistically sound sampling plan. Such a
statistically-based test plan provides reasonable certainty that any
future emissions from an engine is likely to be within certain bounds.
This approach is frequently used to ensure reliability of engine parts
and engine performance even though an engine manufacturer never tests
such parts or performance over an infinite number of in-use conditions.
We expect a similar approach to be taken when designing engines to meet
NTE standards.
Furthermore, we do not believe that manufacturers will need to test
an ``infinite'' or inappropriately large number of steady state and
transient
[[Page 34613]]
combinations with field test equipment. Rather, manufacturers will be
able to quickly narrow their test programs in the laboratory to focus
in on those areas of engine operation where emissions come closer to
exceeding the NTE standards. Engineering experience and logic dictates
that manufacturers will not expend resources testing areas where
emissions are well understood and well below the NTE standards.
Therefore, we expect that manufacturers can developed and demonstrate
engine calibrations using existing portable measurement systems and
normal engineering practices.
In another comment, engine manufacturers stated that the PM
requirement was infeasible. They noted that verified portable sampling
systems do not exist at this time. Further, they commented that PM
emissions should not be included in the program until such time as
validated, properly field-tested, on-vehicle devices become
commercially available. Finally, the industry association commented
that it is uncertain whether any portable measurement system can
actually measure the same physical quantities as the filter-based
method that is used in the laboratory, which is the basis for the
regulatory definition of particulate, but also the underlying
certification of heavy-duty diesel engines.
We have accommodated the engine manufacturers concerns with regard
to the availability of suitable PM measurement equipment in a number of
ways as described previously in this section. First, we have delayed
the start of the pilot and fully enforceable programs for PM by one
year from the dates contained in the proposed rulemaking to provide
additional time to complete the development of these units. Second, we
have committed to an internal EPA development program to resolve the
remaining technical challenges with measuring PM emission onboard the
vehicle. Third, we have entered into a comprehensive research,
development, and demonstration program with CARB and the engine
manufacturers to fully verify their usability, accuracy, and precision
of portable PM measurement systems. Fourth, we have added a provision
to the regulations that would suspend the in-use test program as it
applies to PM measurement if we determine that fundamental technical
problems with portable in-use PM measurement systems are not resolvable
in a reasonable time. In summary, we believe there is an adequate basis
to require PM measurement as part of the in-use testing program.
Regarding the comment that it is uncertain whether any portable
measurement system can actually measure the same physical quantities as
the filter-based method that is used in the laboratory, as noted above,
quartz crystal microbalance measures PM by electrostatically depositing
mass on the QCM, and as PM deposits on the QCM its oscillating
frequency changes in proportion to the total mass of the deposited PM.
Because the QCM measures total PM mass directly by inertial
acceleration, the QCM measures the same physical property; namely total
mass, as compared to our laboratory filter-based procedure, which
measures mass by gravitational acceleration (via a PM microbalance).
The final comment regards measuring altitude (elevation) during an
in-use test. In the draft technical support document, we noted that NTE
testing will require specific information on a number of ambient
conditions to determine if the engine is operating within the defined
boundaries of the NTE or to calculate actual test results. We proposed
to allow the direct measurement of these values with a specific
technology or if the engine manufacturer determines that an engine's
electronic control module (ECM) accurately quantifies these parameters,
the manufacturer may rely on ECM values for those parameters. For
altitude, we identified the use a global positioning system (GPS) as a
suitable technology.
Detroit Diesel Corporation recommended that EPA also accept the
sensing of barometric pressure as an adequate surrogate for altitude
determination. They noted that detecting barometric pressure and
determining the corresponding altitude using standard nominal
barometric pressure versus altitude relationship has been practiced by
the company and found to be reliable.
We believe that the guidance given in the draft technical support
document remains appropriate. Direct measurement of the test altitude
through GPS will be preferred as opposed to using a surrogate, e.g.,
sensing barometric pressure) for determining altitude. Our preference
is based on the understanding that there will likely be errors
associated with relying on surrogates such as barometric pressure,
since there would be other factors, i.e., ambient conditions,
inappropriately excluded from the altitude calculations. Nevertheless,
as the final technical support document continues to state, we will
allow the engine manufacturers to use the engine's ECM to determine
altitude, but only if it can be demonstrated that it can be done
accurately. This would be evaluated on a case-by-case basis.
A more detailed discussion of our response to engine manufacturers
comments regarding the status of portable particulate measurement
technology is contained in the summary and analysis of comments
document that accompanies today's final rule.
3. Measurement Accuracy Margin Development Program
Manufacturer comments on the NPRM raised objections to EPA's
proposed in-use accuracy margin value of five percent applicable to all
pollutants covered by the program. As EPA sought clarification on these
comments from the manufacturers and input from CARB, it became evident
that there were legitimate concerns regarding whether or not the
proposed accuracy margins had been sufficiently proven. In an effort to
provide further data to develop final accuracy margins, EPA, CARB, and
the engine manufacturers (through the Engine Manufacturers Association
(EMA)) have entered into a Memorandum of Agreement (MOA) that details a
project for developing data-driven accuracy margins for the gaseous
emissions and PM fully enforceable programs. (See section II.F.3.i. of
this preamble for more on the pilot program accuracy margins.) The MOA
addresses the basic scope and objectives of the research, development
and demonstration (RDD) program, program milestones and schedules,
implementation issues, and intended implications for the regulations.
This RDD program is expected to be completed in two main phases.
The first phase addresses gaseous emission accuracy margins, the second
phase addresses PM accuracy margins. A full test plan has been prepared
for the gaseous emissions RDD program; the test plan for the PM program
is addressed in the MOA, and is to be completed well prior to
initiation of the RDD testing effort. Each of the two programs is
expected to be completed in time to have data driven accuracy margins
for the respective fully enforceable programs, 2007 model year for
gaseous emissions and 2008 for PM emissions. EPA intends to promulgate
these accuracy margins and any related provisions through rulemaking.
The gaseous emissions RDD program contains four basic components.
First, it will assess emissions, exhaust flow, and torque measurement
variability of PEMS units incremental to the laboratory measurement.
Second, the effect of environmental parameters and of on-vehicle time
on measurement accuracy.
[[Page 34614]]
Third, on vehicle/trailer emission measurements versus PEMS emission
measurements of the same operation. And fourth, it will consider
manufacturer voluntary submissions of data that could be used to
develop a margin component that accounts for the variability in key
engine parameters used in the NTE brake-specific emission calculations.
All of this information will be used to develop and validate a computer
model which will produce a data driven accuracy margin for each of the
gaseous emissions to be proposed as discussed above.
The PM emissions RDD program, scheduled to begin in 2006, will
assess the same basic questions as laid out above. Its schedule is
offset by approximately one year to allow for full development of the
PM RDD test program plan and continued development of PM PEMS
capability. The PM accuracy margins and any related provisions are
expected to be promulgated through rulemaking, with the intention that
they apply to the 2008 model year fully enforceable program for PM
emissions.
The efforts under this MOA will be managed by EPA in close
coordination with CARB and the involved engine manufacturers. Progress
reports will be made publicly available. Interested readers are invited
to review the full text of the MOA which is available in the public
docket and at the EPA/OTAQ website for this rule.
M. Pilot Program
To ensure a successful launch of the fully enforceable program for
gaseous emissions testing in calendar year 2007, there will be a more
limited mandatory pilot program in calendar years 2005 and 2006 for
gaseous pollutants (i.e., nonmethane hydrocarbons (NMHC), carbon
monoxide (CO), and oxides of nitrogen (NOX)). Similarly, the
fully enforceable program for PM will be preceded by a pilot program
for that pollutant in calendar years 2006 and 2007. Additionally, one
or both of the pilot programs could be extended, and the fully
enforceable program delayed, in the unlikely event that the process of
identifying the final accuracy margins, discussed above, is
significantly delayed beyond the originally scheduled completion dates.
We will designate engine families for testing under the pilot
program as described in section II. B. of this preamble. In all
likelihood, we will select 2002 through 2006 model year engines for
testing under the gaseous pilot program, and 2002 through 2007 model
year engines under the PM pilot program. As discussed above, we will
only designate families that have been designed to comply with the NTE.
After receiving our selections, manufacturers will then conduct in-use
testing based on the Phase 1 testing criteria according to the scheme
set forth in section II. C. of this preamble. Under those requirements,
engine manufacturers must test up to 10 vehicles per designated engine
family. However, Phase 1 testing will be limited to a total of five
vehicles for engine manufacturers participating in the program to
develop the final measurement accuracy margins for portable emission
measurement systems as described in section II. L. 3. of this preamble.
During the two-year pilot programs for gaseous and PM emissions, both
EPA and the heavy-duty diesel engine manufacturers will gain valuable
experience with the in-use testing protocols, and the generation,
interpretation, and reporting of in-use NTE emissions data.
The evaluation of these data for compliance purposes is limited to
screening for exceedences of the FTP certification standards as well as
the potential use of defeat devices as outlined in prior Agency
guidance. The pilot program data could also be used to screen consent
decree engines certified to pull ahead NTE requirements for compliance
with the applicable NTE limits. If the test results for manufacturers
subject to the full pilot program clearly show that the designated
heavy-duty diesel engine family passes the Phase 1 testing criteria
(i.e., 5 out of 5, 5 out of 6, or 8 out of 10 vehicles pass), no
further testing will be required of that engine family in that year. If
the designated engine family does not clearly pass the test criteria
(i.e., 7 or fewer out of 10 vehicles pass) we will not pursue any form
of remedial action based solely on that data. For manufacturers
participating in the program to develop the final accuracy measurement
margins that must test five vehicles per designated engine family, we
will likewise not pursue any form of remedial action based solely on
that data. However, we may utilize these latter test results in
conjunction with our own test data and other information to assess or
pursue any appropriate enforcement or regulatory action.
We proposed that the certificate of conformity for an engine family
may be voided if the engine manufacturer did not meet its obligations
under the in-use testing rules. International Truck and Engine Company
commented that during the settlement negotiations, all parties
recognized that the 2005 and 2006 pilot programs must remain flexible
in order for it to work. Therefore, the potential consequences of
voiding a certificate of conformity for failing to strictly adhere to
the 2005 and 2006 pilot programs directly contradicts the cooperative
nature of the in-use testing program.
We agree with the commenter that the pilot program needs to remain
flexible and cooperative in nature. However, we are retaining the
provision for the pilot program as a way to assure that all engine
manufacturers participate in that part of the mandatory in-use testing
pilot program. We do not anticipate a reason to revoke a certificate of
conformity if the manufacturer shows a good faith effort in conducting
the pilot program.
N. Public Availability of In-Use Testing Data
We noted in the proposal that in-use test data reported under the
program would be available to the general public for review and
analysis. The engine manufacturers objected to providing public access
to all test data and underlying information. They specifically stated
that information pertaining to how a manufacturer ``controls'' an
engine when achieving in-use emissions compliance is confidential
business information and must be treated as such. Manufacturers stated
that public information should be limited to emission results and
vehicle pass ratios.
Our goal is to ensure the confidentiality a manufacturer's
confidential business information (CBI) while making the in-use test
program as transparent and useful to others as possible. After
carefully considering how to balance these competing interests, we will
make the following information publically available: Engine family,
model, and rating identification; description of test route and test
conditions; engine speed and torque, mass emissions, and work performed
each at a 1 Hz interval; emissions results (for each valid NTE event);
vehicle pass ratio; and any other information needed to calculate the
summary emissions results and the NTE zone for that engine. We will
also make available a generic indication as to whether a deficiency or
carve-out has been encountered for each second of the test. Information
that a manufacturer may designate as CBI will be safeguarded and
withheld from public release by the Agency subject to EPA's CBI
regulations.\11\ Except as listed above as
[[Page 34615]]
publically available, such information will include, but is not limited
to, engine operating and control parameters designated CBI during the
certification process (including those associated with auxiliary
emissions control devices) and the information necessary to identify
specific and complete regions of the NTE control zone where: (1) A
manufacturer has been granted an allowance by EPA to temporarily exceed
the NTE standards under certain limited circumstances (i.e.,
deficiencies), or (2) the emissions contribution from a portion of the
NTE zone has been limited in determining compliance with the NTE
standards (i.e., carve-outs).
---------------------------------------------------------------------------
\11\ If EPA receives a request under the Freedom of Information
Act for records relating to manufacturers' required in-use testing,
it is EPA's standard operating procedure to initially deny the
requestor any responsive records containing information submitted
under CBI claims by the manufacturers. The manufacturers who
submitted the information under CBI claims will be required to
substantiate their claims, and the EPA Office of General Counsel
will make a final determination of confidentiality for the
information. See 40 CFR 2.204 and 205.
---------------------------------------------------------------------------
O. Implications for Other EPA Programs
1. EPA Testing and Supplemental Information
EPA reserves its preexisting authority to conduct repeat testing or
initiate our own in-use testing of a manufacturer's heavy-duty diesel
engine family. The purpose of this testing would be primarily to verify
and supplement, not duplicate, the testing program to be conducted by
manufacturers. Therefore, we do not intend to conduct routine in-use
NTE testing of engines or engine families that satisfy the Phase 1
testing criteria, unless new information indicates that a potential
nonconformity exists. We will also inform and invite the affected
manufacturer to observe any in-use testing that we may conduct which is
related to this program.
2. Selective Enforcement Audit (SEA) Testing
We will limit the existing SEA program after full implementation of
the manufacturer-run, in-use program solely to instances where credible
evidence indicates the existence of a nonconformity. Such evidence may
include: Past noncompliance occurring in new engines or very early in
the life of in-use engines, a manufacturer's quality assurance/quality
control (QA/QC) reporting that identifies or otherwise indicates a
problem, a significant number of consumer complaints or defect reports,
or test data of any type.
In general, we anticipate that a robust, mature manufacturer-run
in-use program would significantly reduce the role SEA plays in EPA's
compliance program. Assembly line emissions audits ensure that the
prototype emission control designs approved during the certification
process successfully transfer into mass produced engines. More
specifically, SEAs evaluate whether manufacturers' design enough
compliance margin into the certified emissions levels to account for
the emissions variability inherent to the design and manufacture of a
particular engine and emissions control system.
It is expected that the in-use program will require manufacturers
to target emissions performance with enough compliance margin below the
standards to account for expected in-use deterioration, and that this
margin will exceed normal emissions variability experienced in new
engines. The use of aftertreatment as the primary means for emissions
control is expected further to reduce EPA's reliance on SEAs as a
compliance tool. These systems typically function at high efficiency
levels and without catastrophic failure on newer engines. If problems
were to occur, it is often only apparent after the aftertreatment-
equipped engine has been in service for some period of time. During SEA
testing, the aftertreatment system will have experienced little mileage
accumulation and, therefore, is expected to perform at essentially
undeteriorated levels. For these reasons, EPA believes SEA testing will
be less critical for a vigorous enforcement program.
As mentioned previously, there are circumstances where SEAs would
still be warranted. Those situations typically involve known or
expected problems which occur relatively early in the engine's useful
life, but have not been remedied by the manufacturer. In those cases,
it is less expensive and more effective to remedy the problem well in
advance of in-use testing. EPA is also interested in occasionally
conducting SEAs for small engine families that may not be the focus of
testing under the manufacturer-run, in-use testing program.
3. Deterioration Factor Testing
Under our current emissions certification program requirements,
manufacturers of heavy-duty diesel engines are allowed considerable
flexibility in generating deterioration factors (DFs). The regulations
only generally specify how to stabilize the engine system prior to
conducting the durability testing. All other aspects of generating DFs,
such as the durability test cycle and the duration of the testing, are
left to the good engineering judgement of the engine manufacturer.
Given this latitude, manufacturers have settled on a fairly standard
set of methodologies for generating DFs.
Deterioration factors are generated in the laboratory using an
engine dynamometer. After the engine is stabilized, it is exercised
over a durability driving cycle for a period of time or mileage
established by the engine manufacturer as mentioned previously.
Emissions are measured over this cycle at intervals specified by the
engine manufacturer. The measured emissions are plotted as a function
of time or mileage and a statistical curve fitting method is used to
calculate emissions deterioration over time. Since the emission tests
are not typically performed to the end of engine's useful life, the
curve-fit is extrapolated to estimate useful life emissions. Either the
measured initial, early-life emissions are subtracted from the
extrapolated useful life emissions (additive DF), or the useful life
emissions are divided by the early-life emissions (multiplicative DF),
depending on the emissions control technology, to calculate the DF and
arrive at the official deteriorated certification test results.
The 2004 and 2007 low emission standards required for heavy-duty
diesel engines has placed the efficacy of how these traditional DF
methodologies are developed and applied under increased scrutiny by
both EPA and the engine manufacturers. The reasons are twofold. First,
aftertreatment and add-on emissions control technologies such as
cooled-EGR are more prone to deterioration compared to past engine
designs. Second, compliance with the emissions standards becomes more
sensitive to the uncertainty in the emissions trends resulting from
these common DFs methods as the stringency of the standards increases.
In the past, manufacturers could target emissions far enough below the
relatively relaxed emissions standards in order to account for the
inherent DF variability. The increased stringency of the 2004 and 2007
standards have reduced those traditional compliance margins, leaving
less headroom to account for DF uncertainty. Exacerbating the issue is
the traditional use of multiplicative DFs which mathematically result
in a larger deteriorated emissions value compared to an additive
approach.
The most likely solution for addressing the loss in confidence with
current DF methods in the near term is for EPA and the engine
manufacturers to work cooperatively to establish more robust
accelerated DF methodologies in the laboratory. This would provide more
certain deteriorated certification emission results. Discussions on
such a solution have already started on an
[[Page 34616]]
informal basis with individual manufacturers and will become more
structured with industry in the near future.
As a longer term approach, it may be possible to reduce or
eliminate the current laboratory-based DF methods by using the test
results generated as part of the proposed manufacturer-run in-use
testing program or test data from other in-use testing that utilizes
portable emission measurement systems to more accurately predict in-use
deterioration. For example, a manufacturer may be able to demonstrate
that DFs generated from the in-use data are superior predictors of
useful life deterioration, or at least correlate well with the more
traditional laboratory approach to developing these factors. To this
end, we intend to assess the generation and submission of DFs based on
the proposed 2005 and 2006 pilot program. We will examine potential
ways to diminish or eliminate burdens on manufacturers of generating
and submitted DFs, while still generating DFs that accurately predict
in-use deterioration. Any appropriate revisions for generating DFs
would be promulgated in a subsequent rulemaking action, particularly in
the rulemaking reexamining the accuracy margin discussed in II. F.
above.
P. Limitations of Warranty Claims
An exceedence of the NTE found through the in-use testing program
is not by itself sufficient to show a breach of the warranty under
section 207(a)(1)(A) or (B). A breach of this warranty would also
require either: (1) That, at the time of sale, the engine or vehicle
was designed, built and equipped in a manner that does not conform in
all material respects reasonably related to emission controls to the
engine as described in the application for certification and covered by
the certificate, or (2) a defect in materials and workmanship of a
component or part that causes the vehicle or engine to fail to conform
to the applicable regulations for its useful life. To the extent that
in-use NTE testing does not reveal such a material deficiency at the
time of sale in the design or manufacture of an engine compared to the
certified engine, or a defect in the materials and workmanship of a
component or part, test results showing an exceedence of the NTE by
itself would not show a breach of the warranty under section 207(a)(1).
III. Economic Impacts
The costs associated with the rule to implement a manufacturer-run,
in-use NTE testing program for heavy-duty diesel engines depends
primarily on how many vehicles are eventually tested under the Phase 1
and 2 testing schemes. This is difficult to estimate because the actual
number for each designated engine family depends on how may vehicles
pass, or fail, the vehicle pass criteria at various points in the
tiered testing design. It is also highly dependent on how manufacturers
chose to conduct the test program and the availability of test
vehicles. However, based on our experience with in-use emissions
testing, including the development and use of portable measurement
systems for compliance testing, and comments from an engine
manufacturer, we identified a reasonable testing scenario that allows
us to estimate the potential costs associated with the program. This
analysis is based on 13 manufacturers who certified 71 engine families
in 2005. Costs are in 2004 dollars.
Our analysis shows a total cost of approximately $1.6 million per
year for the case where no manufacturer must test more than the minimum
number of vehicles under Phase 1 (i.e., 5 vehicles per engine family).
If all manufacturers were to test the maximum number of vehicles
required under Phase 1 (i.e., 10 vehicles per engine family), the total
cost would be about $1.7 million per year. In the most unlikely worst
case scenario where all manufacturers must test the maximum vehicles in
Phase 1 and 2 (i.e., 20 vehicles per engine family), the total cost
would be about $2.1 million per year. Our best estimate of the overall
cost of the proposed program is $1.7 million per year for the entire
industry. The Technical Support Document for this rule contains a
detailed description of our economic analysis.
Overall, while not insignificant, these costs are quite low
compared to other in-use compliance programs. Moreover, they are
especially attractive in comparison to a more traditional in-use
testing program where the engine must be extracted from the vehicle and
tested on an engine dynamometer in the laboratory. In that situation,
each engine test could cost $25,000 if the vehicle could be procured
from an in-use fleet.
IV. Public Participation
In the proposed rule, we invited public participation in a public
hearing and a comment period for written comments. We held the public
hearing on July 15, 2004 to receive comments on the rule. Only the on-
highway, heavy-duty diesel engine manufacturers that are affected by
the rule presented testimony. We also received written comments from
about 10 organizations, ranging from State offices of environmental
protection to the engine manufacturers. The previous sections of this
preamble describe the significant comments and our responses. The Final
Technical Support Document addresses the full range of comments.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 the Agency must determine whether the
regulatory action is ``significant'' and therefore subject to review by
the Office of Management and Budget (OMB) and the requirements of this
Executive Order. The Executive Order defines a ``significant regulatory
action'' as any regulatory action that is likely to result in a rule
that may:
Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs, or the rights and obligations of
recipients thereof; or
Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The Office of Management and Budget reviewed this rule under the
provisions of Executive Order 12866. Any new costs associated with this
rule will be small. See the Technical Support Document for more
information.
B. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2060-0287 (EPA ICR 1684.08).
The Agency will collect information to ensure compliance with the
provisions in this rule. Section 208(a) of the Clean Air Act requires
that engine manufacturers provide information the Administrator may
reasonably require to determine compliance with the regulations;
submission of the information is therefore mandatory. We will consider
confidential all information meeting the
[[Page 34617]]
requirements of Section 208(c) of the Clean Air Act.
As shown in Table V-1, the total annual burden associated with this
proposal is about 3,614 hours and $1,669,000 based on a projection of
13 respondents. The estimated burden for on-highway, heavy-duty diesel
engine manufacturers is a total estimate for both new and existing
reporting requirements. Burden means the total time, effort, or
financial resources expended by persons to generate, maintain, retain,
or disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; and transmit or otherwise disclose the
information.
Table V-1.--Estimated Burden for Reporting and Recordkeeping Requirements
----------------------------------------------------------------------------------------------------------------
Number of Annual burden
Industry sector respondents hours Annual costs
----------------------------------------------------------------------------------------------------------------
Engines...................................................... 13 3,614 $1,669,000
----------------------------------------------------------------------------------------------------------------
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
C. Regulatory Flexibility Act
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule.
For purposes of assessing the impacts of this final rule on small
entities, a small entity is defined as: (1) A small business as defined
by the Small Business Administration (SBA)'s regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
This final rule will not impose any requirements on small entities. The
test procedures that are established by this rule pertain to heavy-duty
diesel engine manufacturers. EPA has previously analyzed this category
for impact on small entities when emission standards were finalized for
this category of engines in October of 2000 (65 FR 59895, October 6,
2000). At that time, EPA noted that two small entities were known to be
affected. Those entities were small businesses that certify alternative
fuel engines or vehicles, either newly manufactured or modified from
previously certified gasoline engines. The test procedures adopted by
this action do not pertain to the engines manufactured by these small
businesses and recent analysis supports that there are no additional
small businesses that would be impacted by this action.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under Section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, Section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective, or least burdensome alternative
that achieves the objectives of the rule. The provisions of Section 205
do not apply when they are inconsistent with applicable law. Moreover,
Section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under Section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
This rule contains no Federal mandates for State, local, or tribal
governments as defined by the provisions of Title II of the UMRA. The
rule imposes no enforceable duties on any of these governmental
entities. Nothing in the rule significantly or uniquely affects small
governments. We have determined that this rule contains no Federal
mandates that may result in expenditures of more than $100 million to
the private sector in any single year. The requirements of UMRA,
therefore, do not apply to this action.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under Section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a
[[Page 34618]]
regulation that has federalism implications and that preempts State
law, unless the Agency consults with State and local officials early in
the process of developing the proposed regulation.
Section 4 of the Executive Order contains additional requirements
for rules that preempt State or local law, even if those rules do not
have federalism implications (i.e., the rules will not have substantial
direct effects on the States, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government). Those
requirements include providing all affected State and local officials
notice and an opportunity for appropriate participation in the
development of the regulation. If the preemption is not based on
express or implied statutory authority, EPA also must consult, to the
extent practicable, with appropriate State and local officials
regarding the conflict between State law and Federally protected
interests within the agency's area of regulatory responsibility.
This rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
This rule does not have tribal implications as specified in
Executive Order 13175. This rule will be implemented at the Federal
level and impose compliance costs only on heavy-duty diesel, on-highway
engine manufacturers. Tribal governments will be affected only to the
extent they purchase and use equipment with regulated engines. Thus,
Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, Section 5-501 of the Order directs the Agency to
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by the Agency.
This rule is not subject to the Executive Order because it does not
involve decisions on environmental health or safety risks that may
disproportionately affect children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not likely to have a significant effect
on the supply, distribution, or use of energy.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. 104-113, Section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless doing so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards. There
are no voluntary consensus standards for the testing required under
this final rule.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2). The Office of Management
and Budget reviewed this rule under the provisions of Executive Order
12866. Any new costs associated with this final rule will be minimal.
VI. Statutory Provisions and Legal Authority
Statutory authority for the engine controls adopted in this rule is
in 42 U.S.C. 7401-7671q.
List of Subjects
40 CFR Part 9
Reporting and recordkeeping requirements.
40 CFR Part 86
Environmental protection, Administrative practice and procedure,
Confidential business information, Incorporation by reference,
Labeling, Motor vehicle pollution, Reporting and recordkeeping
requirements.
Dated: June 3, 2005.
Stephen L. Johnson,
Administrator.
0
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as set forth below.
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
0
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318 1321, 1326, 1330, 1342
1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-
1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-
1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3,
300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-
9657, 11023, 11048.
0
2. Section 9.1 is amended in the table by removing the heading
``Control of Air Pollution From New and In-Use Motor Vehicles and New
and In-Use Motor Vehicle Engines: Certification and Test Procedures''
and adding the following new heading in its place ``Control of
Emissions From New and In-Use Highway Vehicles and Engines'' and a new
entry under the heading in numerical order to read as follows:
[[Page 34619]]
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB control
40 CFR citation No.
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------
Control of Emissions From New and In-Use Highway Vehicles and Engines
------------------------------------------------------------------------
* * * * *
86.1920--86.1925........................................... 2060-0287
* * * * *
------------------------------------------------------------------------
PART 86--CONTROL OF EMISSIONS FROM NEW AND IN-USE HIGHWAY VEHICLES
AND ENGINES
0
3. The authority citation for part 86 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
0
4. Section 86.1 is amended by adding an entry at the end of the table
in paragraph (b)(1) and adding paragraph (b)(6) to read as follows:
Sec. 86.1 Reference materials.
* * * * *
(b) * * *
(1) * * *
------------------------------------------------------------------------
40 CFR
Document No. and name part 86
reference
------------------------------------------------------------------------
* * * * *
ASTM D 975-04c Standard Specification for Diesel Fuel Oils... 86.1910
------------------------------------------------------------------------
* * * * *
(6) NIST material. The following table lists material from the
National Institute of Standards and Technology that we have
incorporated by reference. The first column lists the number and name
of the material. The second column lists the sections of this part
where we reference it. Anyone may purchase copies of these materials
from the Government Printing Office, Washington, DC 20402 or download
them from the Internet at http://www.nist.gov/.
------------------------------------------------------------------------
Part 86
Document No. and name reference
------------------------------------------------------------------------
NIST Special Publication 811, Guide for the Use of the 86.1901
International System of Units (SI), 1995 Edition............
------------------------------------------------------------------------
0
5. Section 86.007-11 is amended by adding paragraph (a)(4)(vi) to read
as follows:
Sec. 86.007-11 Emission standards and supplemental requirements for
2007 and later model year diesel heavy-duty engines and vehicles.
* * * * *
(a) * * *
(4) * * *
(vi) Manufacturers are not required to provide engine information
exclusively related to in-use testing as part of initial certification.
However, upon request from EPA the manufacturers must provide the
information which clearly identifies parameters defining all NTE
deficiencies described under paragraph (a)(4)(iv) of this section and
parameters defining all NTE limited testing regions described under
Sec. 86.1370-2007(b)(6) and (7) that are requested. When requested,
deficiencies and limited testing regions must be reported for all
engine families and power ratings in English with sufficient detail for
us to determine if a particular deficiency or limited testing region
will be encountered in the emission test data from the portable
emission-sampling equipment and field-testing procedures referenced in
Sec. 86.1375. Such information is to be provided within 60 days of the
request from EPA.
* * * * *
0
6. A new Sec. 86.1375-2007 is added to read as follows:
Sec. 86.1375-2007 Equipment specifications for field testing.
For testing conducted with engines installed in vehicles, including
field testing conducted to measure emissions under Not-To-Exceed test
procedures, use the test procedures and equipment specified in 40 CFR
part 1065, subpart J.
0
7. A new subpart T is added to read as follows:
Subpart T--Manufacturer-Run In-Use Testing Program for Heavy-Duty
Diesel Engines
Sec.
86.1901 What testing requirements apply to my engines that have gone
into service?
86.1905 How does this program work?
86.1908 How must I select and screen my in-use engines?
86.1910 How must I prepare and test my in-use engines?
86.1912 How do I determine whether an engine meets the vehicle-pass
criteria?
86.1915 What are the requirements for Phase 1 and Phase 2 testing?
86.1917 How does in-use testing under this subpart relate to the
emission-related warranty in Section 207(a)(1) of the Clean Air Act?
86.1920 What in-use testing information must I report to EPA?
86.1925 What records must I keep?
86.1930 What special provisions apply from 2005 through 2007?
86.1935 What special provisions may apply as a consequence of a
delay in the accuracy margin report for portable emission
measurement systems?
Appendix I to Subpart T--Sample Graphical Summary of NTE Emission
Results
Sec. 86.1901 What testing requirements apply to my engines that have
gone into service?
(a) If you manufacture diesel heavy-duty engines above 8500 lbs.
GVWR that are subject to engine-based exhaust emission standards under
this part, you must test them as described in this subpart. You must
measure all emissions listed in Sec. 86.1910(d) other than PM
beginning in calendar year 2005 and you must measure PM emissions
beginning in calendar year 2006. See Sec. Sec. 86.1930 and 86.1935 for
special provisions that may apply to manufacturers in the early years
of this program.
(b) We may void your certificate of conformity for an engine family
if you do not meet your obligations under this subpart. We may also
void individual tests and require you to retest those vehicles or take
other appropriate measures in instances where you have not performed
the testing in accordance with the requirements described in this
subpart.
(c) In this subpart, the term ``you'' refers to the certificate-
holder for any engines subject to the requirements of this subpart.
(d) In this subpart, round means to round numbers according to NIST
Special Publication 811(incorporated by reference in Sec. 86.1).
Sec. 86.1905 How does this program work?
(a) You must test in-use engines from the families we select. We
may select the following number of engine families for testing, except
as specified in paragraph (b) of this section:
(1) We may select up to 25 percent of your engine families in any
calendar year, calculated by dividing the number of engine families you
certified in the model year corresponding to the calendar year by four
and rounding to the nearest whole number. We will consider only engine
families with annual U.S.-directed production volumes above 1,500 units
in calculating the number of engine families subject to testing each
calendar year under the annual 25 percent engine family limit. In
addition, for model year 2007 through 2009, identical engine families
that are split into two subfamilies under Sec. 86.007-15(m)(9) will
count as only one engine family. If you have only three or fewer
families that each exceed an annual U.S.-directed production volume of
1,500 units, or if you have no engine families
[[Page 34620]]
above this limit, we may select one engine family per calendar year for
testing.
(2) Over any four-year period, we will not select more than the
average number of engine families that you have certified over that
four-year period (the model year when the selection is made and the
preceding three model years), based on rounding the average value to
the nearest whole number.
(b) If there is clear evidence of a nonconformity with regard to an
engine family, we may select that engine family without counting it as
a selected engine family under paragraph (a) of this section. We will
consult with you in reaching a conclusion whether clear evidence of a
nonconformity exists for any engine family. In general, there is clear
evidence of a nonconformity regarding an engine family under this
subpart in any of the following cases:
(1) The engine family was not remedied but is a carry-over from an
engine family you tested under this subpart and was subsequently
remedied based at least in part on the Phase 1 or Phase 2 testing
outcomes described in Sec. 86.1915.
(2) The engine family was not remedied but is a carry-over from an
engine family that was remedied based on an EPA in-use testing program.
(c) We may select any individual engine family for testing,
regardless of its production volume, as long as we do not select more
than the number of engine families described in paragraph (a) of this
section. We may select an engine family from the current model year or
any previous model year, except that we will not select any engine
families from model years before 2007 beginning in the following
calendar years:
(1) 2007 for all emissions testing other than PM testing.
(2) 2008 for PM testing.
(d) You must complete all the required testing and reporting under
this subpart within 18 months after we direct you to test a particular
engine family. We will typically select engine families for testing and
notify you in writing by June 30 of the applicable calendar year. You
may ask for up to six months longer to complete Phase 2 testing if
there is a reasonable basis for needing more time. In very unusual
circumstances you may request an additional six months to complete
Phase 2 testing.
(e) If you make a good-faith effort to access enough test vehicles
to complete Phase 1 or Phase 2 testing requirements under this subpart
for an engine family, but are unable to do so, you must ask us either
to modify the testing requirements for the selected engine family or,
in the case of Phase 1 testing, to select a different engine family.
(f) After you complete the in-use testing requirements for an
engine family that we selected for testing in a given calendar year, we
may select that same family in a later year to evaluate the engine
family's compliance closer to the end of its useful life. This would
count as an additional engine-family selection under paragraph (a) of
this section, except as described in paragraph (b) of this section.
(g) For any communication related to this subpart, contact the
Engine Programs Group Manager (6405-J), U.S. Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Sec. 86.1908 How must I select and screen my in-use engines?
(a) Once we direct you to do testing under this subpart, you must
make arrangements to select test vehicles and engines that meet the
following criteria:
(1) The engines must be representative of the engine family.
(2) The usage of the vehicles must be representative of typical
usage for the vehicles' particular application.
(3) The vehicles come from at least two independent sources.
(4) The key vehicle/engine systems (e.g., power train, drive train,
emission control) have been properly maintained and used.
(5) The engines have not been tampered with, rebuilt or undergone
major repair that could be expected to affect emissions.
(6) The engines have not been misfueled. For example, an engine may
be considered misfueled if operated on a biodiesel fuel blend that is
either not listed as allowed or otherwise indicated to be an
unacceptable fuel in the vehicle's owner or operator manual.
(7) The engines do not have an illuminated MIL or stored OBD
trouble code that lead you to reject the vehicle from the test program
as described in Sec. 86.1910(b)(2).
(8) The vehicles are likely to operate for at least three hours
(excluding idle) over a complete shift-day, as described in Sec.
86.1910(g).
(9) The vehicles have not exceeded the applicable useful life, in
miles or years (see subpart A of this part); you may otherwise not
exclude engines from testing based on their age or mileage.
(10) The vehicle has appropriate space for safe and proper mounting
of the PEMS equipment.
(b) You must keep any records of a vehicle's maintenance and use
history you obtain from the owner or operator, as required by Sec.
86.1925. You must report the engine's maintenance and use history and
information related to the OBD system, as described in Sec. 86.1920.
(c) You must notify us before rejecting a candidate vehicle for
reasons other than failing to meet the acceptance criteria in paragraph
(a) of this section. A candidate vehicle is any prospective vehicle you
have identified to potentially fulfill your testing requirements under
this subpart. Include your reasons for rejecting each vehicle. If an
owner declines to participate in the test program, you may reject the
vehicle without prior notification. Such a rejection must be reported
as described in Sec. 86.1920. We may allow you to replace the rejected
vehicle with another candidate vehicle to meet your testing
requirements for the specific engine family.
(d) You must report when, how, and why you reject candidate
vehicles, as described in Sec. 86.1920.
Sec. 86.1910 How must I prepare and test my in-use engines?
(a) You must limit maintenance to what is in the owners manual for
engines with that amount of service and age. For anything we consider
an adjustable parameter (see Sec. 86.094-21(b)(1)(ii) and Sec.
86.094-22(e)), you may adjust that parameter only if it is outside of
its adjustable range. You must then set the adjustable parameter to the
mid-point of its adjustable range or your recommended setting, unless
we approve your request to do otherwise. You must receive permission
from us before adjusting anything not considered to be an adjustable
parameter. You must keep records of all maintenance and adjustments, as
required by Sec. 86.1925. You must send us these records, as described
in Sec. 86.1920(b)(3)(x), unless we instruct you not to send them.
(b) You may treat a vehicle with an illuminated MIL or stored
trouble code as follows:
(1) If the length of MIL illumination or trouble code storage is
consistent with proper maintenance and use, either test the prospective
test vehicle as received or repair the vehicle before testing. If you
elect to repair the vehicle/engine, but ultimately determine that
repairs cannot be completed in a timely manner, you may reject the
vehicle from the test program and replace it with another vehicle. If
you repair or reject the vehicle, you must describe the MIL or trouble
code information in your report under Sec. 86.1920.
(2) If the length of MIL illumination or trouble code storage is
inconsistent with proper maintenance and use, either
[[Page 34621]]
test the prospective test vehicle as received, repair the vehicle
before testing, or reject the vehicle from the test program and replace
it with another vehicle. If you repair or reject the vehicle, you must
describe the MIL or trouble code information in your report under Sec.
86.1920.
(3) If a MIL is illuminated or a trouble code is set during an in-
use test, do one of the following:
(i) Stop the test, repair the vehicle, and restart the testing. In
this case, only the portion of the full test results without the MIL
illuminated or trouble code set would be used in the vehicle-pass
determination as described in Sec. 86.1912. Describe the MIL or
trouble code information in your report under Sec. 86.1920.
(ii) Stop the test, repair the vehicle, and initiate a new test. In
this case, only the post-repair test results would be used in the
vehicle-pass determination as described in Sec. 86.1912. Describe the
MIL or trouble code information in your report under Sec. 86.1920.
(iii) If three hours of non-idle operation have been accumulated
prior to the time a MIL is illuminated or trouble code set, stop the
test and use the accumulated test results in the vehicle-pass
determination as described in Sec. 86.1912.
(iv) If three hours of non-idle operation have not been accumulated
prior to the time a MIL is illuminated or trouble code is set, and you
elect to repair the vehicle/engine, but ultimately determine that
repairs cannot be completed in a timely manner, you may reject the
vehicle from the test program and replace it with another vehicle. If
you repair or reject the vehicle, you must describe the MIL or trouble
code information in your report under Sec. 86.1920.
(c) Use appropriate fuels for testing, as follows:
(1) You may use any diesel fuel that meets the specifications for
No. 2-D S500 or No. 2-D S15 in ASTM D 975 (incorporated by reference in
Sec. 86.1), as required in the calendar year that in-use testing
occurs.
(2) You may use any biodiesel fuel blend that is either expressly
allowed or not otherwise indicated as an unacceptable fuel in the
vehicle's owner or operator manual or in the engine manufacturer's
published fuel recommendations.
(3) You may drain a prospective test vehicle's fuel tank(s) and
refill the tank(s) with diesel fuel conforming to ASTM D 975
specifications described in paragraph (c)(1) of this section.
(4) Any fuel that is added to the fuel tank(s) of a prospective
test vehicle, or during an in-use test, must be purchased at a local
retail establishment near the site of vehicle procurement or screening,
or along the test route. Alternatively, the fuel may be drawn from a
central fueling source, provided that the fuel used is representative
of that which is commercially available in the area where the vehicle
is operated.
(5) No post-refinery fuel additives are allowed, except that one or
more specific fuel additives may be used during in-use testing if you
can document that the owner/operator of the prospective test vehicle
has a history of normally using the fuel treatment(s), and the fuel
additive(s) is not prohibited in the vehicle's owner or operator manual
or in the engine manufacturer's published fuel-additive
recommendations.
(6) You may take fuel samples from test vehicles to ensure that
appropriate fuels were used during in-use testing. If a vehicle fails
the vehicle-pass criteria and you can show that an inappropriate fuel
was used during the failed test, that particular test may be voided.
You may drain the vehicle's fuel tank(s) and refill the tank(s) with
diesel fuel conforming to the ASTM D 975 specifications described in
paragraph (c)(1) of this section. You must report any fuel tests that
are the basis of voiding a test in your report under Sec. 86.1920.
(d) You must test the selected engines while they remain installed
in the vehicle. Use portable emission-sampling equipment and field-
testing procedures referenced in Sec. 86.1375. Measure emissions of
THC, NMHC (by any method specified in 40 CFR part 1065, subpart J), CO,
NOX, PM (as appropriate), O2, and CO2.
(e) For Phase 1 testing, you must test the engine under conditions
reasonably expected to be encountered during normal vehicle operation
and use consistent with the general NTE requirements described in Sec.
86.1370-2007(a). For the purposes of this subpart, normal operation and
use would generally include consideration of the vehicle's normal
routes and loads (including auxiliary loads such as air conditioning in
the cab), normal ambient conditions, and the normal driver.
(f) For Phase 2 testing, we may give specific directions, as
described in Sec. 86.1915(c)(2).
(g) Once an engine is set up for testing, test the engine for at
least one shift-day. To complete a shift-day's worth of testing, start
sampling at the beginning of a shift and continue sampling for the
whole shift, subject to the calibration requirements of the portable
emissions measurement systems. A shift-day is the period of a normal
workday for an individual employee. If the first shift-day of testing
does not involve at least 3 hours of accumulated non-idle operation,
repeat the testing for a second shift-day. If the second shift-day of
testing also does not result in at least 3 hours of accumulated non-
idle operation, you may choose whether or not to continue testing with
that vehicle. If after two shift-days you discontinue testing before
accumulating 3 hours of non-idle operation on either day, evaluate the
valid NTE samples as described in Sec. 86.1912 and include the data in
the reporting and record keeping requirements specified in Sec. Sec.
86.1920 and 1925. Count the engine toward meeting your testing
requirements under this subpart and use the data for deciding whether
additional engines must be tested under the applicable Phase 1 or Phase
2 test plan.
(h) You have the option to test longer than the two shift-day
period described in paragraph (g) of this section.
(i) You may count a vehicle as meeting the vehicle-pass criteria
described in Sec. 86.1912 if a shift day of testing or two-shift days
of testing (with the requisite non-idle/idle operation time as in
paragraph (g) of this section), or if the extended testing you elected
under paragraph (h) of this section does not generate a single valid
NTE sampling event, as described in Sec. 86.1912(b). Count the engine
towards meeting your testing requirements under this subpart.
(j) You may ask us to waive measurement of particular emissions if
you can show that in-use testing for such emissions is not necessary.
Sec. 86.1912 How do I determine whether an engine meets the vehicle-
pass criteria?
In general, the average emissions for each regulated pollutant must
remain at or below the NTE threshold in paragraph (a) of this section
for at least 90 percent of the valid NTE sampling events, as defined in
paragraph (b) of this section. For 2007 through 2009 model year
engines, the average emissions from every NTE sampling event must also
remain below the NTE thresholds in paragraph (f)(2) of this section.
Perform the following steps to determine whether an engine meets the
vehicle-pass criteria:
(a) Determine the NTE threshold for each pollutant subject to an
NTE standard by adding all three of the following terms and rounding
the result to the same number of decimal places as the applicable NTE
standard:
(1) The applicable NTE standard.
[[Page 34622]]
(2) The in-use compliance testing margin specified in Sec. 86.007-
11(h), if any.
(3) An accuracy margin for portable in-use equipment when testing
is performed under the special provisions of Sec. 86.1930, depending
on the pollutant, as follows:
(i) NMHC: 0.17 grams per brake horsepower-hour.
(ii) CO: 0.60 grams per brake horsepower-hour.
(iii) NOX: 0.50 grams per brake horsepower-hour.
(iv) PM: 0.10 grams per brake horsepower-hour.
(4) Accuracy margins for portable in-use equipment for testing not
performed under the special provisions of Sec. 86.1930, to be
determined by rulemaking as indicated in Sec. 86.1935.
(b) For the purposes of this subpart, a valid NTE sampling event
consists of at least 30 seconds of continuous operation in the NTE
control area. An NTE event begins when the engine starts to operate in
the NTE control area and continues as long as engine operation remains
in this area (see Sec. 86.1370). When determining a valid NTE sampling
event, exclude all engine operation in approved NTE limited testing
regions under Sec. 86.1370-2007(b)(6) and any approved NTE
deficiencies under Sec. 86.007-11(a)(4)(iv). Engine operation in the
NTE control area of less than 30 contiguous seconds does not count as a
valid NTE sampling event; operating periods of less than 30 seconds in
the NTE control area, but outside of any allowed deficiency area or
limited testing region, will not be added together to make a 30 second
or longer event. Exclude any portion of a sampling event that would
otherwise exceed the 5.0 percent limit for the time-weighted carve-out
defined in Sec. 86.1370-2007(b)(7). For EGR-equipped engines, exclude
any operation that occurs during the cold-temperature operation defined
by the equations in Sec. 86.1370-2007(f)(1).
(c) Calculate the average emission level for each pollutant over
each valid NTE sampling event as specified in 40 CFR part 1065, subpart
G, using each NTE event as an individual test interval. This should
include valid NTE events from all days of testing.
(d) Calculate a time-weighted vehicle-pass ratio (Rpass)
for each pollutant. To do this, first sum the time from each valid NTE
sampling event whose average emission level is at or below the NTE
threshold for that pollutant, then divide this value by the sum of the
engine operating time from all valid NTE events for that pollutant.
Round the resulting vehicle-pass ratio to two decimal places.
(1) Calculate the time-weighted vehicle-pass ratio for each
pollutant as follows:
[GRAPHIC] [TIFF OMITTED] TR14JN05.001
Where:
npass = the number of valid sampling events for which
the average emission level is at or below the NTE threshold.
ntotal = the total number of valid NTE sampling events.
(2) For both the numerator and the denominator of the vehicle-pass
ratio, use the smallest of the following values for determining the
duration, t, of any NTE sampling event:
(i) The measured time in the NTE control area that is valid for an
NTE sampling event.
(ii) 600 seconds.
(iii) 10 times the length of the shortest valid NTE sampling event
for all testing with that engine.
(e) The following example illustrates how to select the duration of
NTE sampling events for calculations, as described in paragraph (d) of
this section:
----------------------------------------------------------------------------------------------------------------
Duration used
Duration of in
NTE sample NTE sample Duration Limit Applied? calculations
(seconds) (seconds)
----------------------------------------------------------------------------------------------------------------
1............................................ 45 No............................... 45
2............................................ 168 No............................... 168
3............................................ 605 Yes. Use 10 times shortest valid 450
NTE..
4............................................ 490 Yes. Use 10 times shortest valid 450
NTE..
5............................................ 65 No............................... 65
----------------------------------------------------------------------------------------------------------------
(f) Engines meet the vehicle-pass criteria under this section if
they meet both of the following criteria:
(1) The vehicle-pass ratio calculated according to paragraph (d) of
this section must be at least 0.90 for each pollutant.
(2) For model year 2007 through 2009 engines, emission levels from
every valid NTE sampling event must be less than 2.0 times the NTE
thresholds calculated according to paragraph (a) of this section for
all pollutants, except that engines certified to a NOX FEL
at or below 0.50 g/bhp-hr may meet the vehicle-pass criteria for
NOX if measured NOX emissions from every valid
NTE sample are less than either 2.0 times the NTE threshold for
NOX or 2.0 g/bhp-hr, whichever is greater.
Sec. 86.1915 What are the requirements for Phase 1 and Phase 2
testing?
For all selected engine families, you must do the following:
(a) To determine the number of engines you must test from each
selected engine family under Phase 1 testing, use the following
criteria:
(1) Start by measuring emissions from five engines using the
procedures described in Sec. 86.1375. If all five engines comply fully
with the vehicle-pass criteria in Sec. 86.1912 for all pollutants, you
may stop testing. This completes your testing requirements under this
subpart for the applicable calendar year for that engine family.
(2) If one of the engines tested under paragraph (a)(1) of this
section fails to comply fully with the vehicle-pass criteria in Sec.
86.1912 for one or more pollutants, test one more engine. If this
additional engine complies fully with the vehicle-pass criteria in
Sec. 86.1912 for all pollutants, you may stop testing. This completes
your testing requirements under this subpart for the applicable
calendar year for that engine family.
(3) If your testing results under paragraphs (a)(1) and (2) of this
section do not satisfy the criteria for completing your testing
requirements under those paragraphs for all pollutants, test four
additional engines so you have tested a total of ten engines.
(4) An engine that fails to fully comply with the vehicle-pass
criteria in Sec. 86.1912 for any pollutant does not comply with the
vehicle-pass criteria in Sec. 86.1912 for the purposes of determining
the number of engines to test from each selected engine family under
this paragraph.
[[Page 34623]]
(b) For situations where a total of ten engines must be tested
under paragraph (a)(3) of this section, the results of Phase 1 testing
lead to the following outcomes:
(1) If at least eight of the ten engines comply fully with the
vehicle-pass criteria in Sec. 86.1912 for all pollutants, you may stop
testing. This completes your testing requirements under this subpart
for the applicable calendar year for that engine family.
(2) If six or seven vehicles from the Phase 1 sample of test
vehicles comply fully with the vehicle-pass criteria in Sec. 86.1912
for all pollutants, then you must engage in follow-up discussions with
us to determine whether any further testing (including Phase 2
testing), data submissions, or other actions may be warranted.
(3) If fewer than six of the ten engines tested under paragraph (a)
of this section comply fully with the vehicle-pass criteria in Sec.
86.1912 for all pollutants, we may require you to initiate Phase 2
testing, as described in paragraph (c) of this section.
(4) You may under any circumstances elect to conduct Phase 2
testing following the completion of Phase 1 testing. All the provisions
of paragraph (c) of this section apply to this Phase 2 testing.
(c) If you perform Phase 2 testing for any reason, test your
engines as follows:
(1) You must test ten additional engines using the test procedures
described in Sec. 86.1375, unless we require you to test fewer
vehicles.
(2) We may give you any of the following additional directions in
selecting and testing engines:
(i) We may require you to select a certain subset of your engine
family. This may include, for example, engines within a specific power
range, engines used in particular applications, or engines installed in
vehicles from a particular manufacturer.
(ii) We may direct you to test engines in a way that simulates the
type of driving and ambient conditions associated with high emissions
experienced during Phase 1 testing.
(iii) We may direct you to test engines in a specific state or any
number of contiguous states.
(iv) We may direct you to select engines from the same sources used
for previous testing, or from different sources.
(v) We may require that you complete your testing and reporting
under Phase 2 within a certain period. This period may not be shorter
than three months and must allow a reasonable amount of time to
identify and test enough vehicles. We would generally expect this
testing to be completed within the overall time period specified in
Sec. 86.1905(d).
Sec. 86.1917 How does in-use testing under this subpart relate to the
emission-related warranty in Section 207(a)(1) of the Clean Air Act?
(a) An exceedance of the NTE found through the in-use testing
program under this subpart is not by itself sufficient to show a breach
of warranty under Clean Air Act section 207(a)(1) (42 U.S.C.
7541(a)(1)). A breach of warranty would also require one of the
following things:
(1) That, at the time of sale, the engine or vehicle was designed,
built, and equipped in a manner that does not conform in all material
respects reasonably related to emission controls to the engine as
described in the application for certification and covered by the
certificate; or
(2) A defect in materials or workmanship of a component causes the
vehicle or engine to fail to conform to the applicable regulations for
its useful life.
(b) To the extent that in-use NTE testing does not reveal such a
material deficiency at the time of sale in the design or manufacture of
an engine compared with the certified engine, or a defect in the
materials and workmanship of a component or part, test results showing
an exceedance of the NTE by itself would not show a breach of the
warranty under 42 U.S.C. 7541(a)(1).
Sec. 86.1920 What in-use testing information must I report to EPA?
(a) Send us electronic reports at [email protected] using an approved
information format. If you want to use a different format, send us a
written request with justification.
(b) Within 30 days after the end of each calendar quarter, send us
reports containing the test data from each engine for which testing was
completed during the calendar quarter. Alternatively, you may
separately send us the test data within 30 days after you complete
testing for an engine. Once you send us information under this section,
you need not send that information again in later reports. Prepare your
test reports as follows:
(1) For each engine family, describe how you recruited vehicles.
Describe how you used any criteria or thresholds to narrow your search
or to screen individual vehicles.
(2) Include a summary of the candidate vehicles you have rejected
and the reasons you rejected them, whether you base the rejection on
the criteria in Sec. 86.1908(a) or anything else. If you rejected a
candidate vehicle due to misfueling, included the results of any fuel
sample tests.
(3) For the test vehicle, include the following background
information:
(i) The EPA engine-family designation, and the engine's model
number, total displacement, and power rating.
(ii) The applicable test phase (Phase 1 or Phase 2).
(iii) The date EPA selected the engine family for testing.
(iv) The vehicle's make and model and the year it was built.
(v) The vehicle identification number and engine serial number.
(vi) The vehicle's type or application (such as delivery, line
haul, or dump truck). Also, identify the type of trailer, if
applicable.
(vii) The vehicle's maintenance and use history.
(viii) The known status history of the vehicle's OBD system and any
actions the owner or operator took to address OBD trouble codes or MIL
illumination over the vehicle's lifetime.
(ix) Any OBD codes or MIL illumination that occur after you accept
the vehicle for in-use testing under this subpart.
(x) Any steps you take to maintain, adjust, modify, or repair the
vehicle or its engine to prepare for or continue testing, including
actions to address OBD trouble codes or MIL illumination. Include any
steps you took to drain and refill the vehicle's fuel tank(s) to
correct misfueling, and the results of any fuel test conducted to
identify misfueling.
(4) For each test, include the following data and measurements:
(i) The date and time of testing, and the test number.
(ii) Shift-days of testing (see Sec. 86.1910 (g)), duration of
testing, and the total hours of non-idle operation.
(iii) Route and location of testing. You may base this description
on the output from a global-positioning system.
(iv) The steps you took to ensure that vehicle operation during
testing was consistent with normal operation and use, as described in
Sec. 86.1910(e).
(v) Fuel test results, if fuel was tested under Sec. 86.1908 or
86.1910.
(vi) The vehicle's mileage at the start of the test. Include the
engine's total lifetime hours of operation, if available.
(vii) Ambient temperature, dewpoint, and atmospheric pressure at
the start and finish of each valid NTE event.
(viii) The number of valid NTE events (see Sec. 86.1912(b)).
(ix) Average emissions for each pollutant over each valid NTE
event. Describe the method you used to determine NMHC as specified in
40 CFR
[[Page 34624]]
part 1065, subpart J. See Appendix I of this subpart for an example of
graphically summarizing NTE emission results.
(x) Exhaust-flow measurements.
(xi) Vehicle-pass ratios (see Sec. 86.1912(d)).
(xii) Recorded one-hertz test data, including, but not limited to,
the following parameters:
(A) Ambient temperature.
(B) Ambient pressure.
(C) Ambient humidity.
(D) Altitude.
(E) Emissions of THC, NMHC, CO, CO2 or O2,
NOX, and PM (as appropriate). Report results for
CH4 if it was measured and used to determine NMHC.
(F) Differential back-pressure of any PEMS attachments to vehicle
exhaust.
(G) Exhaust flow.
(H) Exhaust aftertreatment temperatures, if the engine meets the
specifications of Sec. 86.1370-2007(g).
(I) Engine speed.
(J) Engine brake torque.
(K) Engine coolant temperature.
(L) Intake manifold temperature.
(M) Intake manifold pressure.
(N) Throttle position.
(O) Any parameter sensed or controlled in order to modulate the
emission-control system or fuel-injection timing.
(5) For each engine family, identify the applicable requirements,
as follows:
(i) The applicable NTE thresholds.
(ii) Vehicle and engine information needed to identify the limited
testing regions under Sec. 86.1370-2007(b)(6) and (7).
(iii) Vehicle and engine information needed to identify any
approved NTE deficiencies under Sec. 86.007-11(a)(4)(iv).
(6) Include the following summary information after you complete
testing with the engine:
(i) State whether the engine meets the vehicle-pass criteria in
Sec. 86.1912(f).
(ii) Identify how many engines you have tested from the applicable
engine family and how many engines still need to be tested.
(iii) Identify how many engines from an engine family have passed
the vehicle-pass criteria and the number that have failed the vehicle-
pass criteria (see Sec. 86.1912(f)).
(iv) If possible, state the outcome of Phase 1 testing for the
engine family based on the criteria in Sec. 86.1915(b).
(c) In your reports under this section, you must do all the
following:
(1) Include results from all emission testing required under this
subpart.
(2) Describe if any testing or evaluations were conducted to
determine why a vehicle failed the vehicle-pass criteria in Sec.
86.1912.
(3) Describe the purpose of any diagnostic procedures you conduct.
(4) Describe any instances in which the OBD system illuminated the
MIL or set trouble codes. Also describe any approved actions taken to
address the trouble codes or MIL.
(5) Describe any instances of misfueling, the approved actions
taken to address the problem, and the results of any associated fuel
sample testing.
(6) Describe any incomplete or invalid tests that were conducted
under this subpart.
(d) Send us an electronic notification at [email protected] describing
any voluntary vehicle/engine emission evaluation testing you intend to
conduct with portable in-use measurement systems on the same engine
families that are being tested under this subpart, from the time that
engine family was selected for in-use testing under Sec. 86.1905 until
the final results of all testing for that engine family are reported to
us under this section.
(e) Send us an electronic notification at [email protected] within 15 days after your initial review of the test data
for a selected engine family indicates that three engines in Phase 1
testing have failed to comply with the vehicle-pass criteria.
Similarly, send us an electronic notification at the above electronic
address within 3 days after your initial review of the test data for a
selected engine family indicates that any engine in Phase 2 testing
failed to comply with the vehicle-pass criteria.
(f) We may ask you to send us less information in your reports than
we specify in this section.
(g) We may require you to send us more information to evaluate
whether your engine family meets the requirements of this part, or to
help inform potential decisions concerning Phase 2 testing under Sec.
86.1915.
Sec. 86.1925 What records must I keep?
(a) Organize and maintain your records as described in this
section. We may review your records at any time, so it is important to
keep required information readily available.
(b) Keep the following paper or electronic records of your in-use
testing for five years after you complete all the testing required for
an engine family:
(1) Keep a copy of the reports described in Sec. 86.1920.
(2) Keep any additional records, including forms you create,
related to any of the following:
(i) The procurement and vehicle-selection process described in
Sec. 86.1908, including the vehicle owner's name, address, phone
number, and e-mail address.
(ii) Pre-test maintenance and adjustments to the engine performed
under Sec. 86.1910.
(iii) Test results for all void, incomplete, and voluntary testing
described in Sec. 86.1920.
(iv) Evaluations to determine why a vehicle failed the vehicle-pass
criteria described in Sec. 86.1912.
(3) Keep a copy of the relevant calibration results required by 40
CFR part 1065.
Sec. 86.1930 What special provisions apply from 2005 through 2007?
We may direct you to test engines under this subpart for emissions
other than PM in 2005 and 2006, and for PM emissions in 2006 and 2007.
In these interim periods, all the provisions of this subpart apply,
with the following exceptions:
(a) We will select engine families for testing of emissions other
than PM only when the manufacturer's Statement of Compliance
specifically describes the family as being designed to comply with NTE
requirements.
(b) If you participate in the test program described in Sec.
86.1935(a), you may limit your testing under Phase 1 to a maximum of
five vehicles per selected engine family.
(c) We will not direct you to do the Phase 2 testing in Sec.
86.1915(c), regardless of measured emission levels.
(d) For purposes of calculating the NTE thresholds under Sec.
86.1912(a) for any 2006 and earlier model year engine that is not
subject to the emission standards in Sec. 86.007-11, determine the
applicable NTE standards as follows:
(1) If any numerical NTE requirements specified in the terms of any
consent decree apply to the engine family, use those values as the NTE
standards for testing under this subpart.
(2) If a numerical NTE requirement is not specified in a consent
decree for the engine family, the NTE standards are 1.25 times the
applicable FELs or the applicable emission standards specified in Sec.
86.004-11(a)(1) or Sec. 86.098-11(a)(1).
(e) In the report required in Sec. 86.1920(b), you must submit the
deficiencies and limited testing region reports (see Sec. 86.007-
11(a)(4)(iv) and Sec. 86.1370-2007(b)(6) and (7)) for 2006 and earlier
model year engines tested under this section.
(f) Testing under this section may be extended as described in
Sec. 86.1935(d).
Sec. 86.1935 What special provisions may apply as a consequence of a
delay in the accuracy margin report for portable emission measurement
systems?
(a) A memorandum entitled, ``Memorandum of Agreement, Program
[[Page 34625]]
to Develop Emission Measurement Accuracy Margins for Heavy-Duty In-Use
Testing'' describes a test program for establishing measurement
accuracy margins related to testing under Sec. 86.1912(a)(4). This
document is available at http://www.epa.gov/otaq/hd-hwy.htm or at the
mailing address specified in Sec. 86.1905(g).
(b) If there is a delay in receiving the written final report for
either gaseous emissions or PM emissions described in the agreement
referenced in paragraph (a) of this section, and that delay is not
attributable to engine manufacturers failing to meet their commitments
under that agreement, the following provisions apply for the respective
pollutant type (gaseous or PM emissions):
(1) If the delay is 3 months or less, we will delay the designation
of engine families for testing in the applicable calendar year, as
described in Sec. 86.1905(d), by the same number of additional whole
months (rounded up) needed to complete the report.
(2) If the delay is more than 3 months but less than 12 months, we
may continue to designate engine families for testing under the special
provisions described in Sec. 86.1930 for an additional year.
(3) If the delay is longer than 12 months, the following approach
is established for the applicable calendar year:
(i) If the delay is longer than 12 months but less than 15 months,
we will follow the steps described in paragraph (b)(1) of this section.
(ii) If the delay is longer than 15 months but less than 24 months,
we will follow the steps described in paragraph (b)(2) of this section
for the applicable calendar year.
(iii) If the delay is longer than 24 months, the applicable gaseous
or PM emission testing program will go into abeyance.
(c) If one or more engine manufacturers fail to meet commitments
under the agreement described in paragraph (a) of this section and such
a failure results in a delay in the final written report for either
gaseous emissions (NOX, NMHC and CO) or PM emissions
described in the agreement, the following provisions apply for the
respective pollutant type (gaseous or PM emissions):
(1) If the delay is 3 months or less, we will delay the designation
of engine families for testing in the applicable calendar year, as
described in Sec. 86.1905(d), by the same number of additional whole
months (rounded up) needed to complete the report.
(2) If the delay is more than 3 months but less than 12 months, the
provisions of this subpart will not apply for the otherwise applicable
calendar year (2007 for gaseous emissions and 2008 for PM emissions),
subject to the following provisions:
(i) We may identify the number of engine families that would
otherwise have been designated for testing in that calendar year for
the delayed pollutant type and direct manufacturers to test that number
of engine families under the special provisions described in Sec.
86.1930 and additionally in any later calendar year once the provisions
of this subpart begin for that pollutant type, without counting those
accumulated engine families toward the allowable annual cap on the
number of engine families specified in Sec. 86.1905.
(ii) A delay for PM emissions would not be a sufficient basis for
delaying the program for gaseous emissions. Similarly, a delay for
gaseous emissions would not be a sufficient basis for delaying the
program for PM emissions.
(iii) The normal 18-month period for testing and reporting results
specified in Sec. 86.1905(d) is extended to 24 months for any
accumulated engine-family designation described in paragraph (c)(2)(i)
of this section. The additional time extensions for testing and
reporting results as specified in Sec. 86.1905(d) also apply.
(3) If the delay is longer than 12 months, the following approach
is established for the applicable calendar year:
(i) If the delay is longer than 12 months but less than 15 months,
we will follow the steps described in paragraph (c)(1) of this section.
(ii) If the delay is longer than 15 months but less than 24 months,
we will follow the steps described in paragraph (c)(2) of this section
for the applicable calendar year.
(iii) If the delay is longer than 24 months, we will continue to
follow the steps described in paragraphs (c)(1) and (c)(2) of this
section, including the accumulation of engine families for testing,
until the report is received and the fully implemented program
commences.
(d) We may determine that any individual manufacturer's failure
under paragraph (c) of this section constitutes a failure by all engine
manufacturers.
(e) Nothing in this section affects our ability to select engines
from any model year beginning with model year 2007.
(f) If we determine that fundamental technical problems with
portable in-use PM measurement systems are not resolvable in a
reasonable time, the provisions of this subpart, as they apply to PM,
will go into abeyance until we determine that suitable emission-
measurement devices are available for in-use testing.
(g) As described in Sec. 86.1930(b), engine manufacturers
contributing to the test programs described in the agreement referenced
in paragraph (a) of this section may limit their testing under the
special provisions described in Sec. 86.1930 to five engines in each
selected engine family.
Appendix I to Subpart T--Sample Graphical Summary of NTE Emission
Results
The following figure shows an example of a graphical summary of
NTE emission results:
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[FR Doc. 05-11470 Filed 6-13-05; 8:45 am]
BILLING CODE 6560-50-P