[Federal Register: October 4, 1996 (Volume 61, Number 194)] [Rules and Regulations] [Page 52087-52169] >From the Federal Register Online via GPO Access [wais.access.gpo.gov] [[Page 52087]] --------------------------------------------------------------------------- Part II Environmental Protection Agency --------------------------------------------------------------------------- 40 CFR Parts 89, 90, and 91 --------------------------------------------------------------------------- Air Pollution Control; Gasoline Spark-Ignition Marine Engines; New Nonroad Compression-Ignition and Spark-Ignition Engines, Exemptions; Rule [[Page 52088]] ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 89, 90, and 91 [FRL-5548-8] RIN 2060-AE54 Control of Air Pollution; Final Rule for New Gasoline SparkIgnition Marine Engines; Exemptions for New Nonroad CompressionIgnition Engines at or Above 37 Kilowatts and New Nonroad SparkIgnition Engines at or Below 19 Kilowatts AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. --------------------------------------------------------------------------- SUMMARY: As directed under section 213 of the Clean Air Act as amended in 1990 (CAA), EPA is regulating exhaust emissions from new sparkignition (SI) gasoline marine engines (including outboard engines, personal watercraft engines, and jet boat engines) because exhaust emissions from SI gasoline marine engines cause or contribute to ozone concentrations in more than one ozone nonattainment area. Once the program is fully implemented, manufacturers of these engines must demonstrate to EPA that hydrocarbon emissions are reduced, by 75% from present levels, by testing engines representative of the product line before sale and after use. The result of these regulations will be a new generation of cleaner gasoline marine engines available to boaters. EPA is also revising existing regulations for new nonroad CI engines at or above 37 kW and new nonroad SI engines at or below 19 kW so as to include exemptions comparable to exemptions provided to highway engines. DATES: This regulation is effective December 3, 1996. The reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of December 3, 1996. The information collection requirements contained in 40 CFR Part 91 have not been approved by the Office of Management (OMB) and are not effective until OMB has approved them. EPA will publish a document in the Federal Register announcing the effective date. A public workshop for manufacturers who must comply with this regulation will be held on November 13, 1996 beginning at 10 a.m. ADDRESSES: For information or compliance assistance, manufacturers who must comply with this regulation may contact the Office of Mobile Sources, Engine Programs and Compliance Division, Engine Compliance Programs Group, 501 3rd Street, Washington, DC 20005. The public workshop will be held at 501 3rd Street, Washington, DC 20005. Materials relevant to this rulemaking are contained in a docket at the following address: EPA Air Docket (LE-131), Attention: Docket Number A-92-28, room M-1500, 401 M Street, SW., Washington, DC 20460. Materials contained in this docket may be reviewed at this location from 8:00 a.m. until noon and from 1:30 p.m. until 3:30 p.m. Monday through Friday. As provided in 40 CFR part 2, a reasonable fee may be charged by EPA for photocopying. FOR FURTHER INFORMATION CONTACT: Deanne R. North, Office of Mobile Sources, Engine Programs and Compliance Division, at (313) 668-4283 or James A. Blubaugh, Office of Mobile Sources, Engine Programs and Compliance Division, (202) 233-9244. SUPPLEMENTARY INFORMATION: I. Regulated Entities Entities potentially regulated by this action are those which manufacture SI gasoline marine engines. Regulated categories and entities include: --------------------------------------------------------------------------- Category Examples of regulated entities --------------------------------------------------------------------------- Industry.......................... Outboard engine manufacturers, personal watercraft engine manufacturers, jetboat engine manufacturers --------------------------------------------------------------------------- This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your product is regulated by this action, you should carefully examine the applicability criteria in Sec. 91.1 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular product, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. II. Obtaining Copies of Documents This preamble, the final regulatory language, the Summary and Analysis of Comments, and the Regulatory Impact Analysis are also available electronically on the Technology Transfer Network (TTN), which is an electronic bulletin board system (BBS) operated by EPA's Office of Air Quality Planning and Standards. The service is free of charge, except for the cost of the phone call. Users are able to access and download TTN files on their first call using a personal computer and modem per the following information. TTN BBS: 919-541-5742 (1200-14400 bps, no parity, 8 data bits, 1 stop bit) Voice Helpline: 919-541-5384 Also accessible via Internet: TELNET ttnbbs.rtpnc.epa.gov Off-line: Mondays from 8:00 a.m. to 12:00 Noon ET A user who has not called TTN previously will first be required to answer some basic informational questions for registration purposes. After completing the registration process, proceed through the following menu choices from the Top Menu to access information on this rulemaking. GATEWAY TO TTN TECHNICAL AREAS (Bulletin Boards) OMS--Mobile Sources Information Rulemaking & Reporting <6> Non-Road <1> File area #1. Non-Road Marine Engines At this point, the system will list all available files in the chosen category in chronological order with brief descriptions. To download a file, select a transfer protocol that is supported by the terminal software on your own computer, then set your own software to receive the file using that same protocol. If unfamiliar with handling compressed (that is, ZIP'ed) files, go to the TTN top menu, System Utilities (Command: 1) for information and the necessary program to download in order to unZIP the files of interest after downloading to your computer. After getting the files you want onto your computer, you can quit the TTN BBS with the oodbye command. Please note that due to differences between the software used to develop the document and the software into which the document may be downloaded, changes in format, page length, etc. may occur. III. Contents IV. Statutory Authority and Background A. Statutory Authority B. Background V. Requirements of the Final Rule--Overview A. Outboards and Personal Watercraft, and Jetboat Engines B. Emission Standards C. Administrative Programs 1. Pre-production Certification i. Beginning of Emission Standard Phase-in ii. Stabilization of Certification Program 2. Production Line Testing and Compliance 3. In-Use Testing and Remediation i. In-Use Testing Program [[Page 52089]] ii. In-Use Credit Program iii. Recall Provisions 4. Consumer Warranty on Emission Components 5. Manufacturer Reporting of Engines with Emission effects and Voluntary Emission Recalls 6. Tampering with Emission Components 7. Engines Excluded or Exempted from Regulations 8. Prohibition on Importation of Uncertified Engines into the United States 9. Revisions to Small SI (40 CFR Part 90) and Large CI (40 CFR Part 89) Regulations--Added Exemptions VI. Discussion of Issues A. No Sterndrive or Inboard Emission Standards B. Outboard/Personal Watercraft (OB/PWC) Emission Standards Meet Statutory Criteria VII. Regulatory Impact Analysis VIII. Administrative Requirements A. Reporting and Recordkeeping Requirements B. Impact on Small Entities C. Submission to Congress and the General Accounting Office D. Executive Order 12866 E. Unfunded Mandates Reform Act of 1995 IV. Statutory Authority and Background A. Statutory Authority Authority for the actions set forth in this rule is granted to EPA by sections 203, 204, 205, 206, 207, 208, 213, 215, 216, and 301(a) of the Clean Air Act as amended (42 U.S.C. 7522, 7523, 7524, 7525, 7541, 7542, 7547, 7549, 7550, and 7601(a)). B. Background Pursuant to section 213(a) of the Clean Air Act as amended (hereafter, ``CAA''), EPA undertook a study of emissions from nonroad engines and vehicles to determine whether such emissions are significant contributors to ozone or carbon monoxide (CO) concentrations in more than one nonattainment area. A nonattainment area is a specified area that has failed to attain the applicable National Ambient Air Quality Standard (NAAQS) for a given pollutant. Based on the 1991 Nonroad Engine and Vehicle Emission Study (available in the docket) 1, EPA determined that emissions of CO, oxides of nitrogen (NOX), and volatile organic compounds (VOC) from nonroad engines, equipment, and vehicles do, in fact, contribute significantly to ozone and CO concentrations in more than one NAAQS nonattainment area. This significance determination was finalized on June 17, 1994 (59 FR 31306) and is incorporated by reference into this final rulemaking. --------------------------------------------------------------------------- \1\ EPA Publication Number 211A-2001 (November, 1991). --------------------------------------------------------------------------- Under section 213(a)(3) of the CAA, EPA is required to regulate those categories or classes of new nonroad engines, equipment, and vehicles that in EPA's judgement cause or contribute to ozone and CO concentrations in more than one nonattainment area. On November 9, 1994, EPA published a Notice of Proposed Rulemaking (NPRM) establishing emission standards for new gasoline spark-ignition (SI) and diesel compression-ignition (CI) marine engines pursuant to section 213(a) of the CAA.2 On February 7, 1996, EPA published a Supplemental Notice of Proposed Rulemaking (SNPRM).3 In the course of the comment period for the NPRM, some commenters suggested that EPA consider new approaches to some of the items addressed in the proposal; also, it became apparent that some aspects of the proposed regulation were not addressed in sufficient detail in the NPRM and needed additional development for further comment. The SNPRM sought to address these matters. --------------------------------------------------------------------------- \2\ 59 FR 55930 (November 9, 1994). 3 61 FR 4600 (Feb. 7, 1996). --------------------------------------------------------------------------- EPA has determined that gasoline SI marine engines cause or contribute to ozone concentrations in more than one nonattainment area (See Chapter 3 of the RIA). EPA is finalizing emission standards today for gasoline SI marine engines. For gasoline marine engines, the primary pollutants affected by this rule are hydrocarbons (HC), which are a primary component of VOCs. EPA is deferring finalization of emission standards for diesel CI marine engines until a later rulemaking. The gasoline SI marine engine HC emission standards should decrease HC emissions from such engines by approximately 75 percent from projected baseline emission levels by the year 2025. Due to the long lives of a small portion of marine engines, EPA does not anticipate that complete fleet turnover will occur until around the year 2050. V. Requirements of the Final Rule--Overview Beginning in 1998, manufacturers of brand new SI gasoline marine engines used in outboards, personal watercraft, and jetboats must comply with this rule. This rule does not regulate in any way boat engines which already are in use. Today's rule imposes different requirements for the subcategory of outboard, personal watercraft and jetboat (OB/PWC) engines than for the subcategory of sterndrive and inboard engines (SD/Is). Outboards, personal watercraft, and jetboat engines are the engines that EPA is most concerned about from the standpoint of pollution because they currently utilize, for the most part, 2-stroke technology that emits high rates of HC exhaust emissions. Current, unregulated, SD/Is are far cleaner than OB/PWC. The result of this regulation will be that OB/PWC engines will be dramatically cleaner: They will be near the lower emission levels exhibited by today's SD/I engines. By imposing emission standards on only OB/PWC engines, EPA will achieve the greatest degree of emissions reduction achievable from new gasoline SI marine engines as a whole through the application of technology, taking cost (including cost to boaters) and other factors into account. See 42 U.S.C. 7545(a)(3). Further discussion of EPA's rationale for not regulating SD/I engines is provided in Section V below. The engine technology changes resulting from this regulation will be profound. The new generation of OB/PWC engine technology will not only be more environmentally friendly, but will provide boaters with many performance advantages. First, and most important for the environment, the new generation of OB/PWC engines will be much cleaner. However, the engines will also be easier to start, have improved performance, faster acceleration, and less noise. Boaters will realize hundreds of dollars in fuel savings due to significant fuel economy improvements. With the new fuel systems and engine designs, the hassle of mixing fuel and oil will be gone. As an added benefit to the boat owner, the emissions performance of the new generation of marine engines will be guaranteed by a three year or 200 hour warranty. These points are outlined below in Table 1. Table 1.--Benefits of New Technology OB/PWC Marine Engines Less pollution.................................. Stringent exhaust emission standards, cleaner exhaust. Higher Performance.............................. Easier to start engine, better throttle response, smoother idling, and faster and smoother acceleration. [[Page 52090]] Better Fuel Economy............................. Boaters will use over 30% less fuel for the same amount of boating. A Better Boating Experience..................... Less blue smoke, less smelly fumes, and less noise. Less Hassle Refueling........................... Eliminates the hassle of measuring or guessing the proper amount of oil when refueling, no pre- mixing fuel and oil. --------------------------------------------------------------------------- Provided below is an overview of the major program elements of the gasoline marine engine rule finalized today. For a full discussion of the significant comments received on this rulemaking and EPA's reasons for finalizing the rule as set forth today, the reader should refer to the Summary and Analysis of Comments document available in the docket. A. Outboard, Personal Watercraft, and Jetboat Engines Outboards and personal watercraft (i.e., Jet Skis, Wave Runners, etc.) are defined in 40 CFR 91.3. For purposes of this rulemaking, jetboats are considered personal watercrafts and are subject to the pollution control requirements outlined here for OB/PWC unless derived from sterndrive and inboard type marinized automotive blocks. The Administrator may designate a jetboat engine to be a sterndrive or inboard type of engine if the engine is comparable in technology and emissions to an inboard or sterndrive engine. B. Emission Standards The emission standards finalized today for outboards, personal watercraft, and jetboats require a very large reduction in hydrocarbon emissions on a brake specific basis (i.e., g/kw-hr) with only a slight increase in NOX emissions. The standards vary by rated power and apply to a manufacturer's entire fleet. The standards require increasingly stringent HC control over the course of a nine-year phasein period beginning in model year 1998. By the end of the phase-in, each manufacturer must meet an HC+NOX emission standard on a corporate average basis that represents a 75 percent reduction in HC compared to unregulated levels. EPA's administrative program requirements are designed to ensure that the targeted reductions actually occur by making manufacturers responsible for testing engines, reporting the results to EPA, and demonstrating compliance with the emission standards. The administrative program requirements are described below in section C. Corporate average standard: The gasoline marine emission standard finalized today is an average emission standard meaning that the manufacturer's product line of outboards and personal watercraft must comply with the emission standards on a corporate average basis. The corporate average emission standard structure helps to make the standard technologically achievable by offering manufacturers flexibility in achieving the HC reductions required. Further, the structure minimizes cost by allowing the manufacturers and the market to determine the best way to achieve the targeted reductions over time. EPA sets the standards that apply to the engines in the manufacturer's new sales fleet, which in effect sets the required reduction in the manufacturer's corporate average emission level. The manufacturer determines on its own what type of control technology to apply to which engines. This flexibility is essential because the emission standard will require revolutionary technology that does not currently exist across the product line, the leadtime for implementation is short, and targeted reductions across the phase-in are large. Additionally, uncertainty exists regarding the viability and durability of control technology because prototypes have not yet been designed for many current engine models. Averaging means that an engine family in a manufacturer's product line could be certified to an emissions level in excess of the applicable emission standard, so long as its excess emissions are offset by an engine family that is certifed to an emissions level below the applicable emission standard. In other words, any emissions in excess of the average emission standard must be balanced by emissions lower than the average emission standard. Full actual life emissions are taken into account when calculating this balance. The calculation includes: The difference between the applicable emission standard and the engine family emission limit (FEL), Sales in the applicable model year, Average annual use in hours, The power output of the engine family, The future survival probability of each engine, The net present value of the credits over time. If a FEL is above the applicable emission standard, then the engine family is generating negative credits. Conversely, if the FEL is below the applicable emission standard then the engine family is generating positive credits. After the negative and positive credits are added up across the manufacturer's product line, the manufacturer must have a net positive or zero emission credit balance. Nine-year phase-in: The applicable emission standards are phased-in beginning in the 1998 model year and fully implemented in the 2006 model year. A phase-in of the emission standard is necessary to help make the standard technologically achievable. For example, a manufacturer may gradually phase-in new technology accross its product line instead of changing all of its product line in a single year. This allows the manufacturer needed flexibility to apply the unproven control techonology in a systematic way, given concerns regarding control technology viability and durability. The applicable emission standard for each year of the phase-in is calculated in reference to a baseline curve which describes, on average, the current emission rates of the entire power output range (e.g., 2 horsepower to 300 horsepower) of unregulated OB/PWC engines. EPA's standard structure requires manufacturers to reduce brake specific (i.e., g/kw-hr) HC emissions by at least 75 percent in 2006, the final year of the phase-in. HC+NOX emission standard: The numerical values of the applicable emission standards are described in detail below and in section 91.207 of the regulatory text. As proposed in the SNPRM, EPA is finalizing an HC+NOX average emission standard which retains the 75 percent reduction in HC emissions and the 6.0 g/kw-hr NOX level in 2006 and later years proposed in the NPRM. This standard will take the form of an HC+NOX function that becomes more stringent each year for a nine year phase-in period. This function results from reducing baseline HC emissions to at most 25 percent of the uncontrolled level while allowing an increase of NOX from 2.0 to 6.0 g/kw-hr incrementally over nine years. Some NOX increase is technologically inevitable if HC reductions of 75 percent or more are to be achieved. The expected increase in total NOX emissions from these engines is small compared to the large HC inventory reductions. [[Page 52091]] The following formulas and tables summarize the HC+NOX emission standard for each rated power of the engine family as finalized for OB/PWC: [GRAPHIC] [TIFF OMITTED] TR04OC96.000 HCbase=hydrocarbon base average level in g/kw-hr P=rated power of the engine family in kilowatt (kw). [GRAPHIC] [TIFF OMITTED] TR04OC96.001 NOXbase=oxides of nitrogen base average level To determine the HC+NOX level for the base year, HCbase and NOXbase are added. HC and NOX are both changed to their final year level in equal increments. To calculate the HC+NOX standard for a given model year and rated power, use Table 2 and the following equation: [GRAPHIC] [TIFF OMITTED] TR04OC96.002 HC+NOX=emission standard in a given model year in g/kw-hr A=hydrocarbon reduction factor based in a given model year. B=NOX level factor in a given model year C=maximum HC+NOX average, in g/kw-hr, in a given model year Table 2.--OB/PWC Engines [Factors for calculation of HC+NOX emission standard] --------------------------------------------------------------------------- Model year A B C --------------------------------------------------------------------------- 1998......................................... 0.917 2.44 278 1999......................................... 0.833 2.89 253 2000......................................... 0.750 3.33 228 2001......................................... 0.667 3.78 204 2002......................................... 0.583 4.22 179 2003......................................... 0.500 4.67 155 2004......................................... 0.417 5.11 130 2005......................................... 0.333 5.56 105 2006 and after............................... 0.250 6.00 81 The HC+NOX standard for PWC does not go into effect until 1999. At this time, PWC engines will be required to meet the same standard as OB engines. Initially, OB and PWC are in separate averaging sets; however, beginning in 2001, OB and PWC enter the same averaging set. No carbon monoxide standard: EPA is not finalizing the carbon monoxide (CO) cap, proposed in the NPRM, of 400 g/kw-hr for OB/PWC gasoline marine engines. See the Summary and Analysis of Comments for a discussion of this issue. C. Administrative Programs In recognition of the unique nature of the marine industry, EPA is finalizing some innovative administrative programs for OB/PWC. EPA believes the OB/PWC programs introduced here are appropriately designed for OB/PWC compliance demonstration because of the market structure and smaller size of the marine engine industry and the nature of the technology used. EPA has taken a cradle-to-grave approach to the emission performance of the manufacturer's product line. EPA's goal is to promote high quality engine design, production, and in-use emission performance through a system of manufacturer based testing programs. These innovative compliance programs will encourage the gain and use of emission information, allowing the manufacturer and EPA to better understand the emissions of an engine family. EPA wants the manufacturers to quickly climb the learning curve with respect to the emissions performance of their engines. This approach uses a cycle of evaluation, learning, and incorporation of information on emission characteristics to promote the production of high quality marine engines that achieve significant reductions in emissions throughout their useful lives. The individual elements of the compliance program are described below. These individual elements are interactive. For example, the certification program entails estimation by the manufacturer of the emission performance of the engine family once it is in production and throughout its useful life. The production line testing program provides information to the manufacturer, prior to introduction of the engine into commerce, on how well the manufacturer is producing the engine from an emission perspective. It is in essence a quality control program which encourages the manufacturer to develop accurate emission estimates for certification and make corrections to the certification data when the previous estimates were found to be in error or to take action on its own to keep the emission quality within limits, such as the institution of appropriate production line changes. When the manufacturer cannot make production line changes, the manufacturer may change the engine family emission limit (FEL) so long as the manufacturer can maintain corporate average compliance with the emission standards. Additionally, the in-use testing program provides significant information on how well the emission quality of the engines is holding up in actual use. If an engine family's emissions are higher and worse on average than its FEL, EPA allows the manufacturer to balance those exceedances with credits from other engine families that had better inuse emission performance on average than their respective FELs. The gasoline marine administrative programs focus on incentives toward compliance, flexibilities to achieve targeted reductions, and the spread of [[Page 52092]] knowledge to facilitate emission quality improvements. By offereing these incentive, flexibilities, and knowledge, the programs outlined above, and other details described below, allow gasoline marine engines to achieve dramatic HC reductions through substantial engine changes while minimizing cost. Additionally, EPA has carefully constructed the requirements to minimize the information collection requirements. The information required elicits only the amount of information that would be useful to the manufacturers in producing high quality emission performance, and is complete enough to assist EPA in performing its responsibilities to monitor and enforce compliance to the requirements of this rule. To facilitate evaluation of this information, EPA is developing an interactive, computer-based compliance monitoring system that will take advantage of the latest technology available to lower compliance monitoring costs for both the manufacturers and EPA. EPA expects that the administrative programs for gasoline marine engines finalized here will work well and ensure compliance, that manufacturers will pursue compliance in good faith, and that the environment benefits in accordance with the targeted reductions. However, these programs are innovative and are unproven and may not on their own ensure such results, EPA is maintaining backstop measures such as selective enforcement auditing and mandatory recall. EPA hopes that circumstances do not arise that would warrant imposing these backstop measures. 1. Pre-Production Certification Under sections 203, 206, and 213 of the CAA, all gasoline marine engine families must be certified by EPA as meeting applicable emission standards before they are introduced into commerce (42 U.S.C. 7522(a)(1), 7525(a)(1), 7547(d)). In order to meet this requirement, manufacturers must submit an Application for Certification that identifies the engine family emission limit (i.e., FEL). If the engine family conforms to the applicable requirements, EPA issues a certificate of conformity. This certificate of conformity allows the manufacturer to introduce the engine family into commerce. Compliance is on a corporate average basis as explained above in section B with respect to the emission standards. Therefore, at the end of the model year, the manufacturer must have a net positive or zero emission credit balance to be in compliance. In addition, each engine family must comply with its certification FEL. If the manufacturer is not in compliance, EPA is authorized under sections 206(b) and 213(d) to suspend or revoke the applicable certificates of conformity. As this regulation is somewhat unique with respect to the emission standards and the way in which they are phased-in, EPA is finalizing some flexibilities for manufacturers during the early years of the phase in of emission standards to help manufacturers convert to the new emission control technology as soon as possible while minimizing cost. Some unique aspects include phasing in the emission standard by targeted percentage emission reduction targets and requiring the entire product line to be included in the average during the phase-in. EPA believes that focusing the manufacturers investments on the new technology that will be introduced, rather than on existing technology that will be phased out of production anyway, will promote greater emissions reductions over time. Also, some flexibilities add extra incentive toward earlier than required reductions (e.g., early banking). As the phase in progresses, however, these flexibilities cease so that there is not an inadvertant incentive toward the continuing production of the higher emitting existing technology. As the program is phased-in, some requirements are brought in to strengthen the overall corporate average and ensure the numerical integrity of the reduction targets, for example, by requiring test results rather than the baseline curve to identify existing technology FELs. At the end of the phase-in, it is important that all engine families have equivalent requirements so as to ensure that the cleanest technology is promoted. The compliance flexibilities for the early years of the program are described below. i. Beginning of Emission Standard Phase-In Several important flexbilities and provisions exist in the beginning of the emission standard phase-in period, as follows. Averaging sets: EPA is separating the averaging sets in the beginning of the emission standard phase-in but is finalizing a single averaging set for model year 2001 and later. EPA thinks the flexibility afforded by a single averaging set will greatly facilitate the most cost-effective emission reductions over the phase-in period. The averaging sets for personal watercraft and outboards are split for the first three years of the phase-in. In other words, EPA is restricting the use of any positive personal watercraft credits being used to offset negative outboard engine credits and vice versa before the model year 2001. This initial split in the averaging sets will assure that in the early years of the program, control technology is being applied to both personal watercraft and outboard engines. If the sets were not split, the possibility would exist that control could be disproportionately applied to one type of engine over the other across the market. Some manufacturers have expressed support for split sets in the early years of the program because they are concerned with potential negative competitive effects of disproportionate application of control technology. EPA is more concerned with maintaining a single averaging set for OB/PWC in the long term because it promotes economic efficiency and will minimize consumer cost in achieving the significant HC reductions contemplated in this rule. Therefore, the early years of split ABT sets assures that control technology is applied to both types of engines and mitigates some manufacturers' concern over anti-competitive effects. Yet, limiting this restriction to only the first few years of the program assures that in the long run the market is encouraged to take advantage of the most cost-effective emission reductions across the new sales fleet. Early banking: The early banking flexibility allows manufacturers to certify their entire product line before the implementation date of this rule. The manufacturers would then receive a portion of their emissions reductions as banked credits to be used in future years. This flexibility allows manufacturers to ease their transition into meeting tighter emission standards over time. Most importantly, EPA achieves an air quality benefit that would not have otherwise been achieved because a portion of the credits generated for environmental benefit is retained. The value of the banked credits provides an incentive for manufacturers to introduce clean technology earlier than required. EPA will allow engines in the outboard averaging set to potentially earn credits for model year 1997. To generate credits, a manufacturer must meet the 1998 model year emission HC+NOX reduction target on a corporate average basis. If the manufacturer meets the 1998 model year emission reduction target (i.e., 8.3% corporate average reduction), the manufacturer may bank any credits in excess of half the 1998 model year target (i.e., credits may be banked in excess of a 4.15% corporate reduction target). [[Page 52093]] EPA will allow engines in the personal watercraft averaging set to potentially earn credits for model years 1997 and 1998. Although personal watercraft are not required to attain reductions until the 1999 model year, EPA is finalizing early banking provisions because EPA thinks extra flexibility is needed when the standards are first implemented to facilitate adoption of control technology, due to the additional packaging constraints that personal watercraft manufacturers must address. In keeping with the policy for outboard early banking credits, if the manufacturer meets the 1998 model year emission reduction target (i.e., 8.3% corporate average reduction), the manufacturer may bank any credits in excess of half the 1998 model year target (i.e., credits may be banked in excess of a 4.15% corporate reduction target). In addition, for model year 1997, EPA will allow PWC manufacturers to bank any credits in excess of half the 1998 model year reduction target (i.e., credits may be banked in excess of a 4.15% corporate average reduction target). However, for 1997, PWC manufacturers do not have to meet the 8.3% reduction target. EPA is relaxing this aspect for 1997 model year PWC early banking because EPA thinks it will be signficantly more difficult for PWC manufacturers to apply control technology in 1997 due to packaging constraints. However, outboard manufacturers do not have the same difficulties as PWC manufacturers in applying control technology and therefore are required to exceed a 8.3% corporate reduction to gain 1997 early banking credits. Multi-year averaging: EPA will allow manufacturers who cannot adequately cover the negative emission credits in their product line for certification either in model year 1998 or 1999 to make up the required reductions by model year 2000. EPA will allow a maximum of 30% of the 1998 model year or 20% of the 1999 model year required reductions for outboards to be made up by the 2000 model year. EPA will allow a maximum of 50% the 1999 model year required reduction for PWC to be made up by the 2000 model year. As the implementation of these emission standards begins relatively early (i.e., effectively less than one model year after this notice), this flexibility is needed because it will be challenging for the manufacturers to meet the targeted reduction. However, EPA's concern about foregone benefits associated with noncompliance is mitigated because the manufacturers must remediate these foregone benefits in the future. Thus, EPA is allowing a needed flexibility while at the same time ensuring that there are no foregone benefits. Existing technology flexibilities: Resources in this industry are scarce. Therefore, directing manufacturers investment towards future technologies will promote greater emission reductions overall. The focus of manufacturer investment and effort should be on the design, development, and testing of new, clean technology, rather than on existing, uncontrolled technology that will be eliminated anyway. Therefore, EPA is implementing a simplified certification process for the existing, uncontrolled engines as well as waiving some postcertification requirements. EPA thinks these flexibilities offer the right balance between assuring the manufacturers are achieving the targeted reductions and optimizing investment in the control technology of the future. ``Existing technology'' OB/PWC engine families are considered to be those engines in production for the 1997 or previous model years that do not utilize newer technologies. The simplified certification process for these engines will involve reduced data submission requirements. Another flexibility concerns the acceptance of alternative test data. In the beginning of the certification program, there will be many existing technology engine families in the manufacturers' product lines. As testing facilities are somewhat limited and manufacturers must begin a concentrated effort to design, certify, produce, and sell new technology engines, EPA will allow manufacturers to use surrogate data (e.g., previous test results or the baseline curve) to estimate the FEL's of existing technology engine families. However, as compliance is on a corporate average basis, it is important that FEL's be adequately estimated in order to ensure the targeted emission reductions are achieved. Therefore, EPA will require that by the end of model year 2000, all engine families have certification quality test results to represent the FEL's. Further, EPA is requiring that manufacturers retroactively apply this data to any existing technology engine families that previously used other data (e.g., previous test results or the baseline curve) in model years 1998, 1999, or 2000 for credit calculation purposes, and by the end of model year 2000 must make up any credit shortfalls that may exist from model year 1998, 1999, and 2000. Finally, EPA is offering existing technology engines exemptions from the regulations promulgated today for production line testing, selective enforcement auditing, and in-use testing; as well as regulations for emission defect reporting, reporting of voluntary emissions recalls, and warranty provisions (all of these postcertification programs are described below). These flexibilities will be available through the 2003 model year, unless the manufacturers commits to a specific schedule on ceasing production of the existing technology engine family by the end of model year 2005 and EPA approves continued production until then. ii. Stabilization of Certification Program Beginning in model year 2001, all engine families must have FELs adequately identified by certification quality test data. Thus, by the end of model year 2000, all existing technology engine families that had FELs based on other data (e.g., previous test results or the baseline curve) must be in compliance in model year 2000 with credits that reflect a revised FEL adequately identified by certification quality test data. EPA refers to this process as a ``true-up'' of the corporate average reduction levels, such that FELs and credit balances for model years 1998-2000 will be based on actual test data. Beginning in model year 2004, any existing technology engine family that the manufacturer intends to continue producing will be required to meet the full range of administrative requirements. With the exception of existing technology engine families that the manufacturer commits to discontinue by the end of model year 2004 or 2005 (and EPA approves), the certification process is augmented with production line testing, in-use testing, emission-defect reporting, and defect warranty requirements. 2. Production Line Testing and Compliance As proposed, EPA is finalizing an innovative quality control program in which the manufacturer monitors the emissions quality of engine families with respect to the engine family emission limit (FEL) that the manufacturer chooses for certification. In essence, this program assures EPA and the manufacturer that the engines are being built as designed. EPA is finalizing the marine engine production line testing program for the reasons described below, as well as the reasons cited in the NPRM and SNPRM. Under this emission compliance program, manufacturers test engines as they leave the production line. The [[Page 52094]] statistical procedure employed in this program will enable manufacturers to select engines at appropriate sampling rates for emission testing. This program is different than the approach EPA uses for other mobile sources, such as on-highway motor vehicles. The more traditional approach relied on for assuring that the engines are produced as designed for other mobile sources is called Selective Enforcement Auditing (SEA). In the SEA program, EPA audits the emissions of new production engines by requiring manufacturers to test engines pulled off the production line upon short notice. This spot checking approach relies largely on the deterrent effect: The premise is that manufacturers would design their engines and production processes and take other steps necessary to make sure their engines are produced as designed and thereby avoid the penalties associated with failing SEA tests, should EPA unexpectedly do an audit. EPA has taken a different approach in the marine engine production line testing program: This program implements a more flexibly organized testing regime that acts as a quality control method that manufacturers will proactively utilize and monitor to assure compliance. Manufacturers will continue to take steps to produce engines within statistical tolerances and assure compliance aided by the quality control data generated by PLT which will identify poor quality in real time. As proposed, EPA is employing a statistical procedure known as the Cumulative Sum (CumSum) Procedure in the Production Line Testing Program that will enable manufacturers to select engines at appropriate sampling rates for emission testing and will determine whether production line engines are complying on average with emission standards. CumSum procedures are used for the detection of changes in the average level of a process; this procedure is useful both as an assessment tool for EPA and a quality control tool for engine manufacturers. The procedure is capable of detecting significant changes in the average level of a process, while ignoring minor fluctuations that are simply acceptable variation in the process. EPA will also finalize a SEA program that will serve as a backstop measure should the marine engine production line testing program become problematic. For example, if EPA became aware of reporting fraud or improper testing procedures, it would be appropriate for EPA to perform selective enforcement audits to assure compliance. Additional reasons for SEA are discussed in the proposal and supplemental proposal. Should production line or SEA testing show that an engine family is not complying with its FEL, EPA may suspend or revoke the engine family Certificate of Conformity in whole or in part. Before the suspension or revocation goes into effect, EPA will work with the manufacturer to facilitate approval of the required production line remedy in order to eliminate the need to halt production if possible. To have the certificate reinstated subsequent to a suspension, or reissued subsequent to a revocation, the manufacturer must raise the FEL for the applicable production engines or demonstrate by showing passing data that improvements, modifications, or replacement have brought the engine family into compliance with the existing FEL. If the manufacturer raises the FEL, all data accumulated during the model year but prior to the FEL change would be recalculated with the new FEL, including the certification credits. Under the final rule, EPA may allow FEL changes to engines previously produced based on PLT testing. EPA is adopting this more flexible approach for this rulemaking as a pilot program provision. This rulemaking is an appropriate place to try this provision because the total scope of the marine requirements include a fairly comprehensive production line testing and in-use testing program based on the principle of gaining more and better emission information upon which to determine compliance. EPA will monitor manufacturers' use of FEL changes and may implement appropriate regulatory changes if manufacturers are attempting to change FELs to levels that do not provide adequate assurance of in-use emission levels (e.g., ``shaving FELs'') or gaming the system to skew certification credits at the expense of or to the benefit of in-use credits. While EPA may allow FEL changes to apply to engines previously produced based on PLT data and Administrator approval, EPA has not allowed this for Selective Enforcement Auditing (SEA) or as an alternative to recall in the past for other mobile sources and is not allowing it for SEA or as an alternative to recall of gasoline marine engines either. Allowing FEL changes to be made on engines previously produced in this rulemaking does not imply that it will be preferred for other rulemakings, SEA, or as an alternative to recall in the future. EPA thinks it important that the deterrent effect of the SEA and recall programs be maintained. Therefore, exceedance of the FEL in an SEA may be the basis for recall and exceedance of the FEL in use may be the basis for recall or the use of the in-use credit program. Both the production line testing and SEA programs are authorized under section 206(b) of the CAA, 42 U.S.C. 7525(b). This provision of the CAA authorizes EPA to test new production engines to determine whether such engines do in fact conform to the emission standards with respect to which the certificate of conformity was issued. In addition, the Agency may require that a manufacturer test the engines in compliance with conditions specified by EPA. Further, section 208(a) directs manufacturers to establish and maintain records, perform tests where such testing is not otherwise reasonably available under Part A, Title II, of the CAA, make reports, and provide information that the agency may reasonably require to determine whether the manufacturer has complied with applicable emission standards. 42 U.S.C. 7542(a). 3. In-Use Testing and Remediation As proposed, EPA is finalizing a manufacturer's in-use testing program. This testing will provide information regarding the in-use emission performance of engines in relation to the expected in-use performance to which the engines were designed and built. Further, the Agency is allowing manufacturers to engage in averaging, banking and trading of in-use emission credits to reconcile the in-use test results as an alternative to mandatory recall. Positive emission credits may be generated from an engine family whose average in-use emission performance is lower than its FEL and may be used to offset in-use emission performance in excess of the FEL by another engine family discovered through the in-use testing program. Based on such use of credits, EPA would plan on not making a determination that a substantial number of engines in the engine family fail to conform with the applicable standards. Manufacturer based in-use testing is advantageous because it is an innovative method of gaining acceptable knowledge of in-use engine emission performance. Further, the in-use credit program allows for an expedient and appropriate remediation under the circumstances. An alternative to mandatory recall is also necessary based on the limited ability to conduct effective recalls as discussed in more detail below. In the more traditional approach, EPA focuses on targeted audit testing wherein the deterrent threat of recalling and fixing engines is designed [[Page 52095]] to provide incentive to manufacturers to ensure engines comply in-use. EPA is finalizing the recall provisions as a backstop measure, yet is hopeful that the new approach of the in-use testing program and in-use credit program is effective and obviates the need for the Agency to consider the recall provisions. i. In-Use Testing Program This program contains elements designed to minimize the burden on the industry while maintaining a strong incentive to build engines that meet applicable standards when in actual use. Gasoline marine engine manufacturers will be subject to an in-use testing period of up to 10 years or 350 hours (whichever occurs first), except for personal watercraft, which would be 5 years or 350 hours of operation (whichever occurs first). The in-use testing program provides that a portion of a manufacturer's engine families will be tested each year and provides for greatly reduced testing if the initial engines are in compliance. Manufacturers may establish different fleets of engines for their inuse testing program. Each engine within a fleet must have experienced conditions that are representative of actual in-use conditions. EPA will provide guidance for manufacturers in establishing proper maintenance practices for their in-use testing program. Under this program, the manufacturer will have certain discretion to establish its own in-use testing program within EPA's guidelines. For example, EPA may designate a certain engine family to be tested for a particular model year. At that time, the manufacturer can determine when and where the in-use testing will take place at its own facilities. In-use compliance with emission standards will be determined based on test results using the same test procedure as that used in certification. The in-use testing program is authorized under section 208(a) of the CAA, 42 U.S.C. 7542(a). Section 208(a) directs manufacturers to establish and maintain records, perform tests where such testing is not otherwise reasonably available under Part A, Title II, of the CAA, make reports, and provide information that the agency may reasonably require to determine whether the manufacturer has complied with applicable emission standards. 42 U.S.C. 7542(a). ii. In-Use Credit Program EPA is finalizing the marine engine in-use credit program which is designed to reduce compliance cost without reducing environmental benefits. The program provides manufacturers with flexibility in addressing potential in-use noncompliance in a way that EPA agrees would avoid the need for a determination of nonconformity under section 207(c) of the Act, and thereby avoid a recall. As proposed, participation in this program is voluntary. The flexibility that this program provides is appropriate given the particular circumstances of the marine engine industry. In the event that engine families fail in-use testing, EPA believes that recalling the nonconforming engines would be particularly burdensome and impractical for this industry, mainly due to the difficulty of tracking the nonconforming engines. If registration with a government entity occurs, it is the vessel that is registered, not the vessel's engine; manufacturers of marine engines do not typically know in what vessels their engines are installed. Tracking the engines would thus be cumbersome and difficult, especially because manufacturers estimate that the owner moves or the vessel is typically sold about four years after the initial purchase. Therefore, recalling the engines would likely require substantial resources, yet not be highly effective in actually remedying the excess emissions. The Agency has the authority to promulgate this in-use credit program under the circumstances. The CAA provides that the marine engine emission standards, when finalized, shall be subject to section 207 of the Act, ``with such modifications of the applicable regulations * * * as the Administrator deems appropriate.'' 42 U.S.C. 7547(d). Section 213 requires engines to comply with emission standards when in actual use throughout their regulatory useful lives, and section 207 requires a manufacturer to remedy in-use nonconformity when EPA determines that a substantial number of properly maintained and used engines fail to conform with the applicable emission standards. 42 U.S.C. 7541. Once EPA makes this determination, recall would be necessary to remedy the nonconformity. However, under the circumstances here, where OB/PWC marine engines use ABT to comply with the emission standards at certification and it is expected that recall would be impractical and largely ineffective, it is appropriate not to make a determination of substantial nonconformity where a manufacturer uses ABT to offset in-use noncompliance. Thus, the CAA offers EPA the discretion to not make a section 207(c) determination of substantial nonconformity where a marine engine manufacturer uses ABT to offset any noncompliance with the statute's in-use performance requirements. Though the language of section 213(d) is silent on the issue of averaging, it allows EPA considerable discretion in determining what modifications to the on-highway regulatory scheme are appropriate for nonroad engines. In-use credits are based upon in-use testing conducted by the manufacturer. For a given engine family, the in-use compliance level (CL) is determined by averaging the results from in-use testing performed for that engine family. If the in-use CL is below the applicable FEL to which the engine family is certified, the manufacturer will generate in-use credits for that engine family. If the in-use CL is above the applicable FEL, the engine family will experience a credit deficit. The in-use credit program credits are calculated in the same manner as the certification credits, except that the basis is the difference between the CL and the FEL, not between the FEL and the standard. All other elements of the credit calculation are the same, including the use of engine family sales, use, sales-weighted power, load factor, and survival probability. iii. Recall Provisions EPA will be actively monitoring and evaluating the results of the in-use testing and in-use credit programs so as to ensure that it is unnecessary to utilize the recall provisions. However, if these new, innovative programs do not produce adequate assurance of corporate inuse compliance, the recall provisions serve as a backstop that can be utilized. EPA expects that remedial action under section 207(c) would be largely ineffective, both because industry structure and engine owner turnover make it difficult for a manufacturer to identify the owners of a nonconforming engine, and because safety recalls of marine engines have generated little consumer response in the past. This is why the in-use credit program is an important element of the overall compliance program. However, despite the difficulties associated with recalling gasoline marine engines, EPA is finalizing the provisions because the in-use credit program is a new and unproven type of program to address in-use compliance and EPA thinks that applying the recall subpart makes it more direct and expedient to take action if necessary. Section 213(d) of the CAA provides that new nonroad engines ``shall be subject'' to the provisions of sections 206-209 (42 U.S.C. 7547(d)). [[Page 52096]] Under section 207(c) of the CAA the Administrator must require manufacturers to recall applicable engines if the Administrator determines that a substantial number of properly maintained and used engines are tested and found not to conform with applicable emissions standards when in actual use throughout their useful life. See Center for Auto Safety v. EPA, 747 F.2d 1 (D.C. Cir. 1984). As proposed, the useful life and in-use testing period for sparkignition marine engines will be for 10 years or 350 hours of operation (whichever occurs first), except personal watercraft, which would be 5 years or 350 hours of operation (whichever occurs first). The actual repair period for which a manufacturer must remedy nonconformities would not be limited by the in-use testing period but by the regulatory useful life. Thus any resulting recall may apply to all engines of the recall family within the regulatory useful life at the time EPA makes a determination of substantial nonconformity. However, the age and hours of operation of the engine at the time of repair is not relevant. So long as an engine was within its useful life as of the date of the nonconformity determination, it is subject to recall repair even if it has been operated beyond the useful life period at the time the manufacturer recalls the engine or the repair is performed. Given the unique nature of the OB/PWC industry, all innovative compliance program elements described above, and the complications with recall described above for this industry, EPA thinks it appropriate to excercise discretion to limit recall repair liability in this rule in this way. The Agency does not expect limiting the recall repair liability as described above to affect compliance enforcement or the emission reductions expected from this rule.4 --------------------------------------------------------------------------- \4\ EPA's authority to impose recall repair liability is broader than EPA chooses to finalize with respect to the marine final rulemaking today. See 40 CFR part 85, subpart S, appendix A. See also GM v. Ruckelshaus, 742 F.2d 1561 (D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1074 (1985). The action taken today is limited to OB/PWC spark-ignition marine engines and does not affect the recall repair liability of other mobile sources. Further, it is based on the unique circumstances cited above. --------------------------------------------------------------------------- 4. Consumer Warranty on Emission Components In accordance with section 207(a) of the CAA, manufacturers must warrant to the ultimate purchaser and any subsequent purchaser, for a specified warranty period set by EPA, that the emission related components and systems of OB/PWC engines are free from defects in material or workmanship which would cause such engine to fail to conform with applicable regulations. The statute also requires manufacturers to provide a ``time of sale'' warranty that the engine is designed, built, and equipped so as to conform at the time of sale with applicable emission regulations. See 42 U.S.C. 7541(a)(1). This consumer warranty covers both ``major emission control components'' and ``emission related components''. Major emission control components include such items as catalytic converters, exhaust gas recirculation, air injection systems, and thermal reactors. Such components have a significant effect on the emissions of the engine if they are defective or malfunctioning. Emission related components include such systems and related sensors as the fuel metering system, ignition system, and air induction system. These components affect emission performance but are different from major emission control components in that they are not designed specifically for emission control. EPA has decided to phase-in the defect warranty requirements in the early years of the program, gradually increasing the warranty time period until in model year 2004 and after the warranty period is 3 years or 200 hours, whichever comes first, for major emission control components and 2 years or 200 hours, whichever comes first, for emission related components. For model years 2001, 2002, and 2003, emission related components need only be covered for 1 year while the major emission control components, which EPA is most concerned about, will be warranted for 3 years or 200 hours beginning in 2001. For model years 2000 and sooner, major emission control components and emission related components need only be covered for a minimum of 1 year. Current standard manufacturers warranties of the type this rule applies to are one year in length. Some manufacturers offer two year warranties, but this is the exception rather than the norm. The warranty requirements in this rule double or triple the warranty time period for those items related to the emission characteristics of the engine. This warranty will help ensure the manufacturing of a durable emission system and will require the manufacturer to cover all repairs and replacements involving emission related components at no cost to the ultimate purchaser during the warranty period. 5. Manufacturer Reporting of Engines With Emission Defects and Voluntary Emission Recalls The Agency is adopting the proposed emission defect reporting regulations which require a manufacturer to file a defect information report whenever a manufacturer identifies the existence of a specific emission-related defect in 25 or more engines manufactured in the same model year. However, no report would need to be filed if the defect was corrected prior to the sale of the affected engines to the ultimate purchaser. Further, manufacturers must file a report whenever a voluntary emission recall is undertaken. Reporting of emission defects is important in helping EPA identify engine families for in-use testing and assisting in resolution of warranty claims and monitoring misbuilds and other emission quality issues across manufacturers. 6. Tampering With Emission Components In accordance with section 203(a)(3)(A), the Agency is adopting provisions that will prohibit tampering with marine engine emission components. All persons will be prohibited from tampering with any emission-related component or element of design installed on or in a marine engine. Marine tampering provisions will help ensure that in-use engines remain in certified configurations and continue to comply with emission requirements. The Agency has applied the existing policies developed for on-highway tampering to engines included in this rule. (See Office of Enforcement and General Counsel; Mobile Source Enforcement Memorandum No. 1A, June 25, 1974.) 7. Engines Excluded or Exempted From Regulations EPA is adopting the proposed regulations which allow manufacturers and other persons, where appropriate, to obtain exemptions from regulation for certain purposes. These purposes include research, investigations, studies, demonstrations, training, or for reasons of national security. Export exemptions, manufacturer-owned engine exemptions, and some national security exemptions are granted without application. Other exemptions are obtained by application. Nonconforming engines used solely in competition will be excluded from this rule. Engines other than those used in competition may be excluded if the Administrator determines that the exclusion is necessary because emission [[Page 52097]] control modifications would be unsafe, impractical, or highly unlikely because of features that are not easily removed. 8. Prohibition on Importation of Uncertified Engines Into the United States Nonconforming marine engines originally manufactured after the effective date of this rule, will not be permitted to be imported for purposes of resale, except as specifically permitted by this action. This rule provides certain exemptions for various reasons, including temporary exemptions for repairs and alterations, testing and display, and permanent importation exemptions for national security and certain marine engines proven to be identical, in all material respects, to their corresponding EPA certified versions. The Agency has decided not to establish an independent commercial importers (ICI) program for marine engines. 9. Revisions to Small SI (40 CFR part 90) and Large CI (40 CFR part 89) Regulations--Added Exemptions EPA is finalizing the provisions, as proposed, regarding exemptions for other nonroad regulations, including small SI engines and large CI engines. No comments were received that opposed these provisions. The exemptions for nonroad categories are now comparable to highway engines. The finalized provisions include the addition of competition exclusion and revised criteria for national security exemption. V. Discussion of Issues This section of the preamble discusses the two most significant issues that arose in comments on the NPRM and SNPRM. There are many important issues that are not discussed here, rather, that are analyzed in the Summary and Analysis of Comments document. This is a separate document and is available to the public, as described in the Supplementary Information section at the beginning of this preamble. Further discussion of the two issues presented here also appear in the Summary and Analysis of Comments document. A. No Sterndrive or Inboard Emission Standards A sterndrive or inboard (SD/I) engine is an engine which utilizes a four-stroke, automotive style engine block which has been modified (i.e., marinized) to facilitate the marine application. The design is such that the engine (and drive unit in the case of inboard engines) is internal to the hull of the marine vessel. These current, uncontrolled SD/I engines are over 85 percent cleaner than existing OB/PWC engines for HC. With this rule seeking a 75 percent reduction in emissions from OB/PWC engines on average, these SD/I engines will remain comparatively cleaner than levels expected to be achieved from regulated OB/PWC by MY 2006. Section 213(a)(3) directs EPA to establish emission standards for ``classes or categories'' of new nonroad engines which achieve the ``greatest degree of emission reduction achievable through the application of technology * * *, giving appropriate consideration to the cost of applying such technology within the period of time available to manufacturers'' and other factors. 42 U.S.C. 7545(a)(3). In this rulemaking, EPA is treating all marine spark-ignition engines as one ``class or category'' of new nonroad engines for which EPA is establishing emission standards. SD/Is constitute one subclass or subcategory of the marine SI class or category, while OB/PWC constitutes another subclass or subcategory. In the SNPRM, EPA requested comment on two proposals for SD/I emission standards: (1) \2/ 3\ MY 2006 OB/PWC HC+NOX cap SD/I emission standard (with the proposed ``postcard cert'' program) or, (2) no SD/I emission standard. In general, commenters supported both the SNPRM proposals. After further analyzing the comments and both options, EPA is finalizing no SD/I emission standards.5 --------------------------------------------------------------------------- \5\ The Summary and Analysis of Comments document provides a full discussion of the comments received on this issue. --------------------------------------------------------------------------- EPA has determined that it is appropriate to impose the HC+NOX emission standard for OB/PWC described above, and no HC or NOX standard for SD/I. EPA believes not imposing an emission standard for SD/I engines achieves greater emission reductions from gasoline marine engines as a class or category than would imposition of SD/I emission standards as proposed in the NPRM or SNPRM, and at less cost to the gasoline marine engine industry as a whole. Because there will be no costs of regulatory compliance imposed on SD/I engines, these engines will become relatively cheaper than regulated OB/PWC. This shift in relative cost is expected to encourage manufacturers to offer a greater range of SD/I engines, including smaller SD/Is that could compete with smaller power output OB/PWC. As a result, EPA expects to realize greater emission reductions from the gasoline marine engine category as a whole due to some substitution of SD/Is for OB/PWC than would be expected to occur with the alternative proposals for SD/I emission standards proposed in the NPRM and SNPRM, and at lesser cost.6 --------------------------------------------------------------------------- \6\ The SNPRM proposal to apply a level of two-thirds of the final OB/PWC curve would not require manufacturers to physically change the engines. However, to the extent that an emission standard imposes costs on SD/I engines, such standards may tend to limit SD/I substitution for OB/PWC. Therefore, somewhat less emissions reductions would be obtained than if there were no SD/I standard at all, while more cost would be imposed on the gasoline marine engine industry as a whole. --------------------------------------------------------------------------- In the SNPRM, EPA requested comment on whether the imposition of SD/I standards at the level proposed in the SNPRM would offer a useful backstop against emissions backsliding (i.e. worsening of emissions performance) by SD/I. EPA did not receive any comments suggesting a concern with potential backsliding. The only comment received indicated that the risk of backsliding was low because the market is driven by performance and would already have exhibited backsliding if this involved a performance increase. Since this is not the case, the commenter indicated that backsliding was unlikely. EPA believes that emissions backsliding is not a realistic concern with SD/I for several reasons. First, these engines have been moving toward electronic fuel injection technology to gain better control over engine performance, which may also result in better emission performance. Second, customer demands for both low odor and low smoke discourage manufacturers from selling engines that have higher emissions. Third, emission performance of the engine blocks used in marine engines is improving because of carryover of on-highway emission-related block designs. EPA plans to issue guidance to states that provides information on the relative emissions from the class or category of gasoline marine engines. This guidance will explain that EPA is not finalizing emission standards for the subclass or subcategory of SD/I engines because they are relatively clean. If at some point in the future it may be appropriate to regulate SD/I engines, EPA believes it is generally more efficient to regulate SD/I engines on a national basis. Information voluntarily provided by industry that exemplifies the emission characteristics of the fleet of SD/I engines will be included in the guidance. However, EPA is not requiring the reporting of such information. [[Page 52098]] B. Outboard/Personal Watercraft (OB/PWC) Emission Standards Meet Statutory Criteria EPA is finalizing an HC+NOX average emission standard, which when completely phased-in (model year 2006), will result in at least an overall 75 percent reduction in HC emissions from OB/PWC compared to baseline levels. The HC emission reduction will come from the use of cleaner technologies, such as 2-stroke direct injection, 4-stroke, catalyst, or other technologies, for OB/PWC. EPA has determined that this standard for the OB/PWC subcategory, together with the lack of a standard for SD/I, is appropriate under the statutory criteria of CAA section 213(a)(3). In selecting emission standards for new nonroad engines, section 213(a)(3) directs EPA to establish ``the greatest degree of emission reduction achievable through the application of technology* * *, giving appropriate consideration to the cost of applying such technology with in the period of time available to manufacturers'' and other factors. 42 U.S.C. 7545(a)(3). The Regulatory Impact Analysis and Summary and Analysis of Comments Document further discuss all issues relating to the appropriateness of the emission standard according to the statutory criteria specified in section 213(a)(3), including technology, cost, noise, energy, and safety factors. In assessing the impact of techological changes and considering the associated cost impacts, EPA analyzed the following among other factors. 1. The marginal cost-effectiveness of emission control. 2. Consideration of price elasticity effects. 3. Spreading capital control costs over time. 4. The level of the NOX standard and associated technology options. 5. The emission standard structure. Based on this analysis, EPA proposed in the NPRM the OB/PWC HC standard incorporated into the HC+NOX standard for OB/PWC finalized in this action. Some commentors questioned the use of marginal cost-effectiveness as a consideration in setting the emission standard while other commenters supported this approach. The language of section 213(a)(3) does not expressly require EPA to use a cost-effectiveness analysis when establishing a new nonroad engine standard. However, the language does give EPA broad latitude to give consideration to the cost of applying new emission reducing technologies. One option that EPA retains in giving ``appropriate'' consideration to such cost is to look at cost-effectiveness (and also price elasticity effects and the spread of capital control costs over time). EPA thinks it appropriate to take into consideration marginal cost-effectiveness in setting the gasoline marine OB/PWC HC+NOX emission standard because it is a reasonable way to take into account the sensitive financial position of the industry, the discretionary nature of the purchases and the resulting impact on emissions, and the magnitude of investment estimated to reduce exhaust emissions. A further discussion of these issues may be found in the RIA, the Summary and Analysis, and the two prior proposals. Figure 1 shows the marginal cost-effectiveness of control technology for gasoline marine OB/PWC. This curve represents the emission reductions, including the tradeoff between HC and NOX, associated with the cost of control technologies for OB/PWC engine families. The underlying data is based on manufacturer's best estimates of control technology options. EPA's analysis of these estimates has concluded that they are reasonable estimates. To the extent that they are not exact, EPA nonetheless expects the shape of the curve to remain consistent. These conclusions are discussed in more detail throughout the Regulatory Impact Analysis. EPA has chosen to set the average HC+NOX emission standard at an HC reduction of 75 percent from baseline levels. EPA believes that the OB/PWC HC+NOX standard adopted today is appropriately based on the criteria set out in CAA section 213(a)(3). The standard will achieve significant reductions from a previously unregulated category, calling for significant investment to develop and apply the technological changes needed to achieve these reductions. This technology will be available, and will not impose undue costs on either the industry or consumers. Beyond this 75 percent level costs dramatically rise disproportionately in relation to further reductions. The marginal cost-effectiveness curve is practically vertical at the 90 percent HC reduction level. EPA believes that a 75 percent reduction level, at this time, is the appropriate level of reductions based on all of the criteria found in CAA section 213(a)(3). BILLING CODE 6560-50-P [[Page 52099]] [GRAPHIC] [TIFF OMITTED] TR04OC96.003 BILLING CODE 6560-50-C [[Page 52100]] VI. Regulatory Impact Analysis EPA performed a draft Regulatory Impact Analysis (RIA) for the NPRM and received comment from the public regarding this draft RIA. Such comments are discussed in the Summary and Analysis of Comments Document and in the Regulatory Impact Analysis that was revised for this final rulemaking. These are separate documents from this preamble and are available to the public, as described in the Supplementary Information section at the beginning of this preamble. An extensive discussion of the emission reduction technology that EPA evaluated may be found in the RIA. The cost-effectiveness of the program for OB/PWC engines is approximately $1000 per ton HC reduced. This number represents EPA's estimate of the ratio of the net present value of the annualized costs to consumers to the net present value of the annualized national HC inventory reduction in tons. These net present values are taken over the time horizon in which the fleet is expected to fully turn over. This ratio is relatively low compared to most other HC national reduction strategies. EPA expects that average costs for OB/PWC engines will increase modestly, approximately 10-15%, or approximately $700 on the average power output engine. These modest increases would potentially be much larger if EPA had not structured the emission standard and administrative program provisions with the broadest market flexibilities possible. This action is designed to provide manufacturers with the utmost flexibility to find the lowest cost solutions to meeting the emission reduction targets. Table 3 shows approximate percent reductions in the national OB/PWC HC inventory that this regulation will produce. Emission reductions are achieved via fleet turnover and thus the 75 percent reduction is not approached until years after the implementation date. The time horizon for complete fleet turnover is very long for gasoline marine engines, potentially up to 50 years for some engines. Table 3.--Projected Inventory Reductions --------------------------------------------------------------------------- Percent reduction Year in OB/PWC HC inventory --------------------------------------------------------------------------- 2000....................................................... 4 2005....................................................... 26 2010....................................................... 52 2015....................................................... 68 2020....................................................... 73 2030....................................................... 75 2040....................................................... 75 2050....................................................... 75 VII. Administrative Requirements A. Reporting and Recordkeeping Requirements The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA prepared eight Information Collection Request (ICR) documents for the NPRM. Two ICRs were approved before publication of the SNPRM and new ICRs were submitted as a result of the revised proposals. Copies of the ICR documents may be obtained from Sandy Farmer, Information Policy Branch; EPA; 401 M St., SW. (mail code 2136); Washington, DC 20460 or by calling (202) 260-2740. The eight ICR documents that have been prepared are: --------------------------------------------------------------------------- EPA ICR document Type of information number --------------------------------------------------------------------------- 1722.01.. Certification/AB&T. 282.07... Emission Defect Information. 1723.01.. Importation of Nonconforming Engines. 1724.01.. Selective Enforcement Auditing. 0012.08.. Engine Exclusion Determination. 0095.07.. Precertification and Testing Exemption. 1725.01.. Manufacturers' Assembly Line Testing. 1726.01.. Manufacturers' In-use Testing. 1763..... In-Use Credit Program. --------------------------------------------------------------------------- Each ICR document estimates the public reporting, recordkeeping, and testing burden for collecting the specified information, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing the collection of information. EPA estimates that the public burden for the collection of information for all ICRs under the final rule as a whole would average approximately 6,900 hours annually for a typical engine manufacturer. This estimate is based on the revised estimates submitted as a result of the proposals. The original estimates included estimates of very low burden for some small manufacturers (such as gasoline SD/I manufacturers) and smaller estimates for compression-ignition diesel engine manufacturers that produced a lower average number in the previous proposals. The hours spent by a manufacturer for information collection activities in any given year would be highly dependent upon manufacturer specific variables, such as the number of engine families, production changes, emissions defects, etc. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to Chief, Information Policy Branch, EPA, 401 M Street, SW. (PM- 223Y), Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, marked ``Attention: Desk Officer for EPA.'' B. Impact on Small Entities EPA has determined that the final regulations do not have a significant impact on a substantial number of small entities. This is largely because the final rulemaking does not apply to SD/I or diesel compression-ignition (CI) engines. As explained in the SNPRM, EPA proposed many flexibilities for SD/I and diesel CI manufacturers because of EPA concerns regarding the significant impact on a substantial number of small manufacturers of SD/I or diesel CI engines. However, EPA is not finalizing emission standards for SD/I or diesel CI engines. EPA does not think the final rule being promulgated will have a significant impact on a substantial number of small entities primarily because there is not a substantial number of small OB/PWC manufacturers which this rule affects. One OB/PWC manufacturer who commented on the rule may be considered a small entity by virtue of having less than 500 employees for parent company and subsidiaries. EPA suspects that there is one additional manufacturer that may qualify as a small entity. The other OB/PWC manufacturers exceed the applicable size standard for the relevant type of small business as established by the Small Business Administration. Therefore, it appears that there may be at most two small entities affected by this rule. EPA is finalizing many flexibilities for smaller volume OB/PWC engine manufacturers and smaller volume engine families. Also, EPA has taken into consideration the potential competitive impacts on some smaller volume manufacturers in finalizing [[Page 52101]] provisions relating to averaging emissions across OB and PWC products. The Summary and Analysis of Comments addresses these flexibilities and competitive concerns. C. Submission to Congress and the General Accounting Office Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 General Accounting Office prior to publication of the rule in today's Federal Register. This rule is a ``major rule'' as defined by 5 U.S.C. 804(a). D. Executive Order 12866 Under Executive Order 12866,7 the Agency must determine whether the regulatory action is ``significant'' and therefore subject to review by OMB and the requirements of the Executive Order. The Order defines ``significant regulatory action'' as one that is likely to result in a rule that may: --------------------------------------------------------------------------- \7\ 58 FR 51735 (October 4, 1993). --------------------------------------------------------------------------- (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Pursuant to the terms of Executive Order 12866, the Agency has determined that this rulemaking is a ``significant regulatory action'' because it may have an annual effect on the economy of $100 million or more or may adversely affect in a material way that sector of the economy involved with the production of gasoline marine engines. As such, this action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record. E. Unfunded Mandates Reform Act of 1995 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 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. Today's rule contains no Federal intergovernmental mandates (under the regulatory provisions of Title II of the UMRA) because there are no enforceable duties on State, local, or tribal governments. However, EPA has determined that this rule contains a Federal mandate that may result in expenditures of $100 million or more for the marine industry in any one year. Accordingly, EPA has prepared under section 202 of the UMRA a written statement which is included in the Regulatory Impact Analysis (RIA). A qualitative and quantitative assessment of the anticipated benefits and costs of this rule is available in the written statement included in the RIA. In summary, this rule achieves reductions in HC which will contribute to the reduction of VOCs and ozone in ozone nonattainment areas throughout the U.S. The costeffectiveness of this rule is approximately $1000 per ton HC reduced. The annualized costs of this rulemaking exceed $300 million in 2006, which is roughly 7% of projected retail expenditures on OB/PWC in that year. The average cost for OB/PWC engines will increase approximately 10-15% or $700 on the average power output engine. EPA identified and considered a range of options in its proposal of this rule, as described in detail in the NPRM and SPNRM. In finalizing this rule, EPA has adopted the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule and complies with the Agency's statutory mandate under section 213(a)(3) of the Clean Air Act. List of Subjects 40 CFR Part 89 Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Imports, Incorporation by reference, Labeling, Nonroad source pollution, Reporting and recordkeeping requirements. 40 CFR Part 90 Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Imports, Incorporation by reference, Labeling, Nonroad source pollution, Reporting and recordkeeping requirements. 40 CFR Part 91 Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Imports, Incorporation by reference, Labeling, Nonroad source pollution, Reporting and recordkeeping requirements. Dated: July 31, 1996. Carol M. Browner, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows: PART 89--[AMENDED] 1. The authority citation for part 89 continues to read as follows: Authority: Sections 202, 203, 204, 205, 206, 207, 208, 209, 213, 215, 216, and 301(a) of the Clean Air Act, as amended (42 U.S.C. 7521, 7522, 7523, 7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550, and 7601(a)). [[Page 52102]] 2. Section 89.2 is amended by revising the definition of ``new'' to read as follows: Sec. 89.2 Definitions. * * * * * New for purposes of this part, means a nonroad engine, nonroad vehicle, or nonroad equipment the equitable or legal title to which has never been transferred to an ultimate purchaser until after the engine, vehicle, or equipment is placed into service, then the engine, vehicle, or equipment will no longer be new after it is placed into service. A nonroad engine, vehicle, or equipment is placed into service when it is used for its functional purposes. With respect to imported nonroad engines, nonroad vehicles, or nonroad equipment, the term ``new'' means an engine, vehicle, or piece of equipment that is not covered by a certificate of conformity issued under this part at the time of importation, and that is manufactured after the effective date of a regulation issued under this part which is applicable to such engine, vehicle, or equipment (or which would be applicable to such engine, vehicle, or equipment had it been manufactured for importation into the United States. * * * * * * Section 89.908 is revised to read as follows: Sec. 89.908 National security exemption. (a)(1) Any nonroad engine, otherwise subject to this part, which is used in a vehicle that exhibits substantial features ordinarily associated with military combat such as armor and/or permanently affixed weaponry and which will be owned and/or used by an agency of the federal government with responsibility for national defense, will be considered exempt from these regulations for purposes of national security. No request for exemption is necessary. (2) Manufacturers may request a national security exemption for any nonroad engine, otherwise subject to this part, which does not meet the conditions described in paragraph (a)(1) of this section. A manufacturer requesting a national security exemption must state the purpose for which the exemption is required and the request must be endorsed by an agency of the federal government charged with responsibility for national defense. (b) EPA will maintain a list of models of nonroad engines (and the vehicles which use them) that have been granted a national security exemption under paragraph (a)(2) of this section. This list will be available to the public and may be obtained by writing to the following address: Group Manager, Engine Compliance Programs Group, Engine Programs and Compliance Division (6403J) Environmental Protection Agency, 401 M Street SW, Washington, DC 20460. PART 90--[AMENDED] 4. The authority citation for part 90 continues to read as follows: Authority: Sections 203, 204, 205, 206, 207, 208, 209, 213, 215, 216, and 301(a) of the Clean Air Act, as amended (42 U.S.C. 7522, 7523, 7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550, and 7601(a)). 5. Section 90.903 is revised to read as follows: Sec. 90.903 Exclusions, application of section 216 (10) and (11) of the Act. (a) For the purpose of determining the applicability of section 216(10) of the Act, an internal combustion engine (including the fuel system) that is not used in a motor vehicle is deemed a nonroad engine, if it meets the definition in subpart A of this part. For the purpose of determining the applicability of section 216(11) of the Act, a vehicle powered by a nonroad engine is deemed a nonroad vehicle, if it meets the definition in subpart A of this part. (b) EPA will maintain a list of models of nonroad engines and models of nonroad vehicles that have been determined to be excluded because they are used solely for competition. This list will be available to the public and may be obtained by writing to the following address: Group Manager, Engine Compliance Programs Group, Engine Programs and Compliance Division (6403J) Environmental Protection Agency, 401 M Street SW., Washington, DC 20460. (c) Upon written request with supporting documentation, EPA will make written determinations as to whether certain engines are or are not nonroad engines. Engines that are determined not to be nonroad engines are excluded from regulations under this part. 6. Section 90.908 is revised to read as follows: Sec. 90.908 National security exemption. (a)(1) Any nonroad engine, otherwise subject to this part, which is used in a vehicle or equipment that exhibits substantial features ordinarily associated with military combat such as armor and/or permanently affixed weaponry and which will be owned and/or used by an agency of the federal government with responsibility for national defense, will be considered exempt from this part for purposes of national security. No request for exemption is necessary. (2) Manufacturers may request a national security exemption for any nonroad engine, otherwise subject to this part, which does not meet the conditions described in paragraph (a)(1) of this section. A manufacturer requesting a national security exemption must state the purpose for which the exemption is required and the request must be endorsed by an agency of the federal government charged with responsibility for national defense. (b) EPA will maintain a list of models of nonroad engines (and the vehicles or equipment which use them) that have been granted a national security exemption under paragraph (a)(2) of this section. This list will be available to the public and may be obtained by writing to the following address: Group Manager, Engine Compliance Programs Group, Engine Programs and Compliance Division (6403J) Environmental Protection Agency, 401 M Street SW., Washington, DC 20460. 7. Part 91 is added to read as follows: PART 91--CONTROL OF EMISSIONS FROM MARINE SPARK-IGNITION ENGINES Subpart A--General Sec. 91.1 Applicability. 91.2 Applicable date. 91.3 Definitions. 91.4 Acronyms and abbreviations. 91.5 Table and figure numbering; position. 91.6 Reference materials. 91.7 Treatment of confidential information. Subpart B--Emission Standards and Certification Provisions 91.101 Applicability. 91.102 Definitions. 91.103 Averaging, banking, and trading of exhaust emission credits. 91.104 Exhaust emission standards for outboard and personal watercraft engines. 91.105 Useful life period, recall, and warranty periods. 91.106 Certificate of conformity. 91.107 Application for certification. 91.108 Certification. 91.109 Requirement of certification--closed crankcase. 91.110 Requirement of certification--prohibited controls. 91.111 Requirement of certification--prohibition of defeat devices. 91.112 Requirement of certification--adjustable parameters. 91.113 Requirement of certification--emission control information label and engine identification number. [[Page 52103]] 91.114 Requirement of certification--supplying production engines upon request. 91.115 Certification procedure--determining engine power and engine families. 91.116 Certification procedure--test engine selection. 91.117 Certification procedure--service accumulation. 91.118 Certification procedure--testing. 91.119 Certification procedure--use of special test procedures. 91.120 Compliance with Family Emission Limits over useful life. 91.121 Certification procedure--recordkeeping. 91.122 Amending the application and certificate of conformity. 91.123 Denial, revocation of certificate of conformity. 91.124 Request for hearing. 91.125 Hearing procedures. 91.126 Right of entry and access. Subpart C--Averaging, Banking, and Trading Provisions 91.201 Applicability. 91.202 Definitions. 91.203 General provisions. 91.204 Averaging. 91.205 Banking. 91.206 Trading. 91.207 Credit calculation and manufacturer compliance with emission standards. 91.208 Certification. 91.209 Maintenance of records. 91.210 End-of-year and final reports. 91.211 Notice of opportunity for hearing. Subpart D--Emission Test Equipment Provisions 91.301 Scope; applicability. 91.302 Definitions. 91.303 Acronyms and abbreviations. 91.304 Test equipment overview. 91.305 Dynamometer specifications and calibration accuracy. 91.306 Dynamometer torque cell calibration. 91.307 Engine cooling system. 91.308 Lubricating oil and test fuel. 91.309 Engine intake air temperature measurement. 91.310 Engine intake air humidity measurement. 91.311 Test conditions. 91.312 Analytical gases. 91.313 Analyzers required. 91.314 Analyzer accuracy and specifications. 91.315 Analyzer initial calibration. 91.316 Hydrocarbon analyzer calibration. 91.317 Carbon monoxide analyzer calibration. 91.318 Oxides of nitrogen analyzer calibration. 91.319 NOX converter check. 91.320 Carbon dioxide analyzer calibration. 91.321 NDIR analyzer calibration. 91.322 Calibration of other equipment. 91.323 Analyzer bench checks. 91.324 Analyzer leakage check. 91.325 Analyzer interference checks. Appendix A to Subpart D of Part 91--Tables 91.326 Pre- and post-test analyzer calibration. 91.327 Sampling system requirements. 91.328 Measurement equipment accuracy/calibration frequency table. 91.329 Catalyst thermal stress test. Appendix B to Subpart D of Part 91--Figures Subpart E--Gaseous Exhaust Test Procedures 91.401 Scope; applicability. 91.402 Definitions. 91.403 Symbols and abbreviations. 91.404 Test procedure overview. 91.405 Recorded information. 91.406 Engine parameters to be measured and recorded. 91.407 Engine inlet and exhaust systems. 91.408 Pre-test procedures. 91.409 Engine dynamometer test run. 91.410 Engine test cycle. 91.411 Post-test analyzer procedures. 91.412 Data logging. 91.413 Exhaust sample procedure--gaseous components. 91.414 Raw gaseous exhaust sampling and analytical system description. 91.415 Raw gaseous sampling procedures. 91.416 Intake air flow measurement specifications. 91.417 Fuel flow measurement specifications. 91.418 Data evaluation for gaseous emissions. 91.419 Raw emission sampling calculations. 91.420 CVS concept of exhaust gas sampling system. 91.421 Dilute gaseous exhaust sampling and analytical system description. 91.423 Exhaust gas analytical system; CVS grab sample. 91.424 Dilute sampling procedure--CVS calibration. 91.425 CVS calibration frequency. 91.426 Dilute emission sampling calculations. 91.427 Catalyst thermal stress resistance evaluation. Appendix A to Subpart E of Part 91--Tables Appendix B to Subpart E of Part 91--Figures Subpart F--Manufacturer Production Line Testing Program 91.501 Applicability. 91.502 Definitions. 91.503 Production Line Testing by the Manufacturer. 91.504 Maintenance of records; submittal of information. 91.505 Right of entry and access. 91.506 Engine sample selection. 91.507 Test procedures. 91.508 Cumulative Sum (CumSum) Procedure. 91.509 Calculation and reporting of test results. 91.510 Compliance with criteria for production line testing. 91.511 Suspension and revocation of certificates of conformity. 91.512 Request for public hearing. 91.513 Administrative procedures for public hearing. 91.514 Hearing procedures. 91.515 Appeal of hearing decision. 91.516 Treatment of confidential information. Subpart G--Selective Enforcement Auditing Regulations 91.601 Applicability. 91.602 Definitions. 91.603 Applicability of part 91, subpart F. 91.604 Test orders. 91.605 Testing by the Administrator. 91.606 Sample selection. 91.607 Test procedures. 91.608 Compliance with acceptable quality level and passing and failing criteria for selective enforcement audits. Appendix A to Subpart G of Part 91--Sampling Plans for Selective Enforcement Auditing of Marine Engines Subpart H--Importation of Nonconforming Marine Engines 91.701 Applicability... 91.702 Definitions. 91.703 Admission. 91.704 Exemptions and exclusions. 91.705 Prohibited acts; penalties. 91.706 Treatment of confidential information. Subpart I--In-Use Testing and Recall Regulations 91.801 Applicability. 91.802 Definitions. 91.803 Manufacturer in-use testing program. 91.804 Maintenance, procurement and testing of in-use engines. 91.805 In-use test program reporting requirements. 91.806 Voluntary emissions recall. Subpart J--Emission-Related Defect Reporting Requirements, Voluntary Emission Recall Program 91.901 Applicability. 91.902 Definitions. 91.903 Applicability to Part 85, subpart T. 91.904 Voluntary emission recall. 91.905 Reports, voluntary recall plan filing, record retention. 91.906 Responsibility under other legal provisions preserved. 91.907 Disclaimer of production warranty applicability. Subpart K--Exclusion and Exemption of Marine SI Engines 91.1001 Applicability. 91.1002 Definitions. 91.1003 Exclusions based on section 216(10) of the Act. 91.1004 Who may request an exemption. 91.1005 Testing exemption. 91.1006 Manufacturer-owned exemption and precertification exemption. 91.1007 Display exemption. 91.1008 National security exemption. 91.1009 Export exemptions. 91.1010 Granting of exemptions. 91.1011 Submission of exemption requests. 91.1012 Treatment of confidential information. Subpart L--Prohibited Acts and General Enforcement Provisions 91.1101 Applicability. 91.1102 Definitions. 91.1103 Prohibited acts. 91.1104 General enforcement provisions. [[Page 52104]] 91.1105 Injunction proceedings for prohibited acts. 91.1106 Penalties. 91.1107 Warranty provisions. 91.1108 In-use compliance provisions. Subpart M--Emission Warranty and Maintenance Instructions 91.1201 Applicability. 91.1202 Definitions. 91.1203 Emission warranty, warranty period. 91.1204 Furnishing of maintenance and use instructions to ultimate purchaser. Subpart N--In-Use Credit Program for New Marine Engines 91.1301 Applicability. 91.1302 Definitions. 91.1303 General provisions. 91.1304 Averaging. 91.1305 Banking. 91.1306 Trading. 91.1307 Credit calculation. 91.1308 Maintenance of records. 91.1309 Reporting requirements. 91.1310 Notice of opportunity for hearing. Authority: Secs. 203, 204, 205, 206, 207, 208, 209, 213, 215, 216, and 301(a) of the Clean Air Act, as amended (42 U.S.C. 7522, 7523, 7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550, and 7601(a)). Subpart A--General Sec. 91.1 Applicability. (a) This part and all its subparts apply to marine spark-ignition engines used to propel marine vessels as defined in the General Provisions of the United States Code, 1 U.S.C.3 (1992), unless otherwise indicated. (b) Sterndrive and inboard engines are exempt from this part. (c) Existing technology OB/PWC are exempt from Sec. 91.112 and subparts D, E, F, G, I (Secs. 91.803 through 91.805), J, M and N through model year 2003. Sec. 91.2 Applicable date. This part applies to marine spark-ignition engines beginning with the 1998 model year, except where otherwise specified. Sec. 91.3 Definitions. The following definitions apply to this part 91. All terms not defined herein have the meaning given them in the Act. Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et.seq. Adjustable parameter means any device, system, or element of design which is physically capable of being adjusted (including those which are difficult to access) and which, if adjusted, may affect emissions or engine performance during emission testing or normal in-use operation. Administrator means the Administrator of the Environmental Protection Agency or his or her authorized representative. Auxiliary emission control device means any element of design that senses temperature, engine speed, engine RPM, transmission gear, or any other parameter for the purpose of activating, modulating, delaying, or deactivating the operation of any part of the emission control system. Certification means, with respect to new SI marine engines, obtaining a certificate of conformity for an engine family complying with the marine SI engine emission standards and requirements specified in this part. Emission control system means any device, system, or element of design which controls or reduces the emission of substances from an engine. Engine as used in this part, refers to marine SI engine. Engine family means a group of engines, as specified in Sec. 91.115. EPA enforcement officer means any officer, employee, or authorized representative of the U.S. Environmental Protection Agency so designated in writing by the Administrator (or by his or her designee). Exhaust emissions means matter emitted into the atmosphere from any opening downstream from the exhaust port of a marine engine. Existing technology OB/PWC means an outboard engine or a personal watercraft engine which was in production for the 1997 or any previous model years and that did not utilize newer technologies such as fourstroke technology, direct-injection two-stroke technology, catalyst technology, or other technology used to comply with emission standards which the Administrator determines is a new type of OB/PWC technology. Family Emission Limit (FEL) means an emission level that is declared by the manufacturer to serve in lieu of an emission standard for certification and for the averaging, banking, and trading program. A FEL must be expressed to the same number of decimal places as the applicable emission standard. Fuel system means all components involved in the transport, metering, and mixture of the fuel from the fuel tank to the combustion chamber(s) including the following: Fuel tank, fuel tank cap, fuel pump, fuel lines, oil injection metering system, carburetor or fuel injection components, and all fuel system vents. Gross power means the power measured at the crankshaft or its equivalent (for outboards, the power may be measured at the propeller shaft), the engine being equipped only with the standard accessories (such as oil pumps, coolant pumps, and so forth) necessary for its operation on the test bed. Identification number means a unique specification (for example, model number/serial number combination) which allows a particular marine SI engine to be distinguished from other similar engines. Inboard engine means a four stroke marine SI engine that is designed such that the propeller shaft penetrates the hull of the marine vessel while the engine and the remainder of the drive unit is internal to the hull of the marine vessel. Marine spark-ignition engine means any engine used to propel a marine vessel, which utilizes the spark-ignition combustion cycle. Marine engine manufacturer means any person engaged in the manufacturing or assembling of new marine SI engines or the importing of such engines for resale, or who acts for and is under the control of any such person in connection with the distribution of such engines. A marine SI engine manufacturer does not include any dealer with respect to new marine SI engines received by such person in commerce. Marine vessel means every description of watercraft or another artificial contrivance used, or capable of being used, as a means of transportation on water, as defined in 1 U.S.C. 3 (1992). Marine vessel manufacturer means any person engaged in the manufacturing or assembling of new marine vessels or importing such marine vessels for resale, or who acts for and is under the control of any such person in connection with the distribution of such vehicles. A marine vessel manufacturer does not include any dealer with respect to new marine vessels received by such person in commerce. Model year means the manufacturer's annual new model production period which includes January 1 of the calendar year for which the model year is named, ends no later than December 31 of the calendar year, and does not begin earlier than January 2 of the previous calendar year. Where a manufacturer has no annual new model production period, model year means the calendar year. New, for purposes of this part, means a nonroad engine, nonroad vehicle, or nonroad equipment the equitable or legal title to which has never been transferred to an ultimate purchaser. Where the equitable or legal title to the engine, vehicle or equipment is not transferred to an ultimate purchaser [[Page 52105]] until after the engine, vehicle, or equipment is placed into service, then the engine, vehicle, or equipment will no longer be new after it is placed into service. A nonroad engine, vehicle, or equipment is placed into service when it is used for its functional purposes. With respect to imported nonroad engines, nonroad vehicles, or nonroad equipment, the term ``new'' means an engine, vehicle, or piece of equipment that is not covered by a certificate of conformity issued under this part at the time of importation, and that is manufactured after the effective date of a regulation issued under this part which is applicable to such engine, vehicle, or equipment, or which would be applicable to such engine, vehicle, or equipment had it been manufactured for importation into the United States. Nonroad engine has the meaning as defined in 40 CFR 89.2. Nonroad vehicle has the meaning as defined in 40 CFR 89.2. Nonroad equipment has the meaning as defined in 40 CFR 89.2. Operating hours means: (1) For engine storage areas or facilities, all times during which personnel other than custodial personnel are at work in the vicinity of the storage area or facility and have access to it. (2) For all other areas or facilities, all times during which an assembly line is in operation or all times during which testing, maintenance, service accumulation, production or compilation of records, or any other procedure or activity related to certification testing, to translation of designs from the test stage to the production stage, or to engine manufacture or assembly is being carried out in a facility. Outboard engine is a marine SI engine that, when properly mounted on a marine vessel in the position to operate, houses the engine and drive unit external to the hull of the marine vessel. Personal watercraft engine (PWC) is a marine SI engine that does not meet the definition of outboard engine, inboard engine or sterndrive engine, except that the Administrator in his or her discretion may classify a PWC as an inboard or sterndrive engine if it is comparable in technology and emissions to an inboard or sterndrive engine. Presentation of credentials means the display of the document designating a person as an EPA enforcement officer or EPA authorized representative. Scheduled maintenance means any adjustment, repair, removal, disassembly, cleaning, or replacement of components or systems required by the manufacturer to be performed on a periodic basis to prevent part failure or marine vessel or engine malfunction, or those actions anticipated as necessary to correct an overt indication of malfunction or failure for which periodic maintenance is not appropriate. Sterndrive engine means a four stroke marine SI engine that is designed such that the drive unit is external to the hull of the marine vessel, while the engine is internal to the hull of the marine vessel. Test engine means the engine or group of engines that a manufacturer uses during certification, production line and in-use testing to determine compliance with emission standards. Ultimate purchaser means, with respect to any new marine SI engine the first person who in good faith purchases such new marine SI engine for purposes other than resale. Used solely for competition means exhibiting features that are not easily removed and that would render its use other than in competition unsafe, impractical, or highly unlikely. Warranty period means the period of time the engine or part is covered by the warranty provisions. Sec. 91.4 Acronyms and abbreviations. The following acronyms and abbreviations apply to this part 91. AECD--Auxiliary emission control device ASME--American Society of Mechanical Engineers ASTM--American Society for Testing and Materials CAA--Clean Air Act CAAA--Clean Air Act Amendments of 1990 CLD--chemiluminescent detector CO--Carbon monoxide CO2--Carbon dioxide EPA--Environmental Protection Agency FEL--Family Emission Limit g/kw-hr--grams per kilowatt hour HC--hydrocarbons HCLD--heated chemiluminescent detector HFID--heated flame ionization detector ICI--Independent Commercial Importer MY--Model Year NDIR--non-dispersive infrared analyzer NIST--National Institute for Standards and Testing NO--Nitric oxide NO2--Nitrogen dioxide NOX--Oxides of nitrogen OB--Outboard engine O2--Oxygen OEM--Original engine manufacturer PMD--paramagnetic detector PWC--personal watercraft RPM--revolutions per minute SAE--Society of Automotive Engineers SEA--Selective Enforcement Auditing SI--Spark-ignition U.S.C.--United States Code VOC--Volatile organic compounds ZROD--zirconium dioxide sensor Sec. 91.5 Table and figure numbering; position. (a) Tables for each subpart appear in an appendix at the end of the subpart. Tables are numbered consecutively by order of appearance in the appendix. The table title will indicate the topic. (b) Figures for each subpart appear in an appendix at the end of the subpart. Figures are numbered consecutively by order or appearance in the appendix. The figure title will indicate the topic. Sec. 91.6 Reference materials. (a) Incorporation by reference. The documents in paragraph (b) of this section have been incorporated by reference. The incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be inspected at U.S. EPA, OAR, Air and Radiation Docket and Information Center, 401 M Street, SW., Washington, DC 20460, or at the Office of the Federal Register, 800 N. Capitol St. NW., 7th Floor, Suite 700, Washington, DC 20001. (b) The following paragraphs and tables set forth the material that has been incorporated by reference in this part. (1) ASTM material. The following table sets forth material from the American Society for Testing and Materials which has been incorporated by reference. The first column lists the number and name of the material. The second column lists the section(s) of this part, other than Sec. 91.6, in which the matter is referenced. The second column is presented for information only and may not be all inclusive. Copies of these materials may be obtained from American Society for Testing and Materials, 1916 Race St., Philadelphia, PA 19103. [[Page 52106]] --------------------------------------------------------------------------- Document number and name 40 CFR part 91 reference --------------------------------------------------------------------------- ASTM D86-93: Standard Test Method for Appendix A to Subpart D. Distillation of Petroleum Products. ASTM D323-90: Standard Test Method for Appendix A to Subpart D. Vapor Pressure of Petroleum Products (Reid Method). ASTM D1319-93: Standard Test Method for Appendix A to Subpart D. Hydrocarbon Types in Liquid Petroleum Products by Fluorescent Indicator Adsorption. ASTM D2622-92: Standard Test Method for Appendix A to Subpart D. Sulfur in Petroleum Products by X-Ray Spectrometry. ASTM D2699-92: Standard Test Method for Appendix A to Subpart D. Knock Characteristics of Motor Fuels by the Research Method. ASTM D2700-92: Standard Test Method for Appendix A to Subpart D. Knock Characteristics of Motor and Aviation Fuels by the Motor Method. ASTM D3231-89: Standard Test Method for Appendix A to Subpart D. Phosphorus in Gasoline. ASTM D3606-92: Standard Test Method for Appendix A to Subpart D. Determination of Benzene and Toluene in Finished Motor and Aviation Gasoline by Gas Chromatography. ASTM E29-93a: Standard Practice for 91.207; 91.120; 91.509; 91.1307. Using Significant Digits in Test Data to Determine Conformance with Specifications. --------------------------------------------------------------------------- (2) SAE material. The following table sets forth material from the Society of Automotive Engineers which has been incorporated by reference. The first column lists the number and name of the material. The second column lists the section(s) of this part, other than Sec. 91.7, in which the matter is referenced. The second column is presented for information only and may not be all inclusive. Copies of these materials may be obtained from Society of Automotive Engineers International, 400 Commonwealth Dr., Warrendale, PA 15096-0001. --------------------------------------------------------------------------- Document number and name 40 CFR part 91 reference --------------------------------------------------------------------------- SAE J1228/ISO 8665 November 91.104, 91.115; 91.118; 91.207; 91.1307. 1991 Small Craft-Marine Propulsion Engine and Systems-Power Measurements and Declarations. SAE J1930 June 1993 91.113. Electrical/Electronic Systems Diagnostic Terms, Definitions, Abbreviations and Acronyms. SAE Paper 770141 Optimization 91.316 of a Flame Ionization Detector for Determination of Hydrocarbon in Diluted Automotive Exhausts, Glenn D. Reschke, 1977. --------------------------------------------------------------------------- Sec. 91.7 Treatment of confidential information. (a) Any manufacturer may assert that some or all of the information submitted pursuant to this part is entitled to confidential treatment as provided by part 2, subpart B, of this chapter. (b) Any claim of confidentiality must accompany the information at the time it is submitted to EPA. (c) To assert that information submitted pursuant to this subpart is confidential, a manufacturer must indicate clearly the items of information claimed confidential by marking, circling, bracketing, stamping, or otherwise specifying the confidential information. Furthermore, EPA requests, but does not require, that the submitter also provide a second copy of its submittal from which all confidential information has been deleted. If a need arises to publicly release nonconfidential information, EPA will assume that the submitter has accurately deleted the confidential information from this second copy. (d) If a claim is made that some or all of the information submitted pursuant to this subpart is entitled to confidential treatment, the information covered by that confidentiality claim will be disclosed by the Administrator only to the extent and by means of the procedures set forth in part 2, subpart B, of this chapter. (e) Information provided without a claim of confidentiality at the time of submission may be made available to the public by EPA without further notice to the submitter, in accordance with Sec. 2.204(c)(2)(i)(A) of this chapter. Subpart B--Emission Standards and Certification Provisions Sec. 91.101 Applicability. The requirements of this subpart B are applicable to all new marine spark-ignition engines subject to the provisions of subpart A of this part 91. Sec. 91.102 Definitions. The definitions in subpart A of this part 91 apply to this subpart. All terms not defined herein or in subpart A of this part have the meaning given them in the Act. Sec. 91.103 Averaging, banking, and trading of exhaust emission credits. Regulations regarding averaging, banking, and trading provisions along with applicable recordkeeping requirements are found in subpart C of this part. Sec. 91.104 Exhaust emission standards for outboard and personal watercraft engines. (a) New marine spark-ignition outboard and personal watercraft engines for use in the U.S. must meet the following exhaust emission standards for HC+NOX. The exhaust emission standard for each model year is provided below. It is also used as input to the calculation procedure in Sec. 91.207 to determine compliance with the corporate average HC+NOX exhaust emission standard. [[Page 52107]] Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission Standards [grams per kilowatt-hour] --------------------------------------------------------------------------- P < 4.3 kW HC+NOX emission P > 4.3 kW HC+NOX emission Model year standard by model year standard by model year --------------------------------------------------------------------------- 1998.................................................. 278.00 (0.917 x (151 + 557/P0.9)) + 2.44 1999.................................................. 253.00 (0.833 x (151 + 557/P0.9)) + 2.89 2000.................................................. 228.00 (0.750 x (151 + 557/P0.9)) + 3.33 2001.................................................. 204.00 (0.667 x (151 + 557/P0.9)) + 3.78 2002.................................................. 179.00 (0.583 x (151 + 557/P0.9)) + 4.22 2003.................................................. 155.00 (0.500 x (151 + 557/P0.9)) + 4.67 2004.................................................. 130.00 (0.417 x (151 + 557/P0.9)) + 5.11 2005.................................................. 105.00 (0.333 x (151 + 557/P0.9)) + 5.56 2006 and later........................................ 81.00 (0.250 x (151 + 557/P0.9)) + 6.00 --------------------------------------------------------------------------- where: P = the average power of an engine family in kW (sales weighted). The power of each configuration is the rated output in kilowatts as determined by SAE J1228. This procedure has been incorporated by reference. See Sec. 91.6. (b) Exhaust emissions are measured using the procedures set forth in subpart E of this part. (c) Manufacturers must designate a Family Emission Limit (FEL) for HC+NOX for every engine family. The FEL may be equal to the emission standard in paragraph (a) of this section. The FEL established through certification serves as the emission standard for the engine family and emissions may not exceed the FEL levels for HC+NOX for all engines sold in the engine family, for their useful life. (d) A manufacturer must comply with a corporate average HC+NOX emission standard as determined in accordance with subpart C Sec. 91.207. Sec. 91.105 Useful life period, recall, and warranty periods. (a) The useful life for PWC engines is a period of 350 hours of operation or 5 years of use, whichever first occurs. The useful life for Outboard marine spark-ignition engines is a period of 350 hours of operation or 10 years of use, whichever first occurs. (b) PWC engines are subject to recall testing for a period of 350 hours of operation or 5 years of use, whichever first occurs. Outboard marine spark-ignition engines are subject to recall testing for a period of 350 hours of operation or 10 years of use, whichever first occurs. However, for purposes of this part only, if the Administrator should issue a nonconformity determination, then only those engines that are within the useful life as of the date of the nonconformity determination are subject to recall repair requirements. (c) Warranty periods are set out in subpart M of this part. Sec. 91.106 Certificate of conformity. (a) Every manufacturer of a new marine SI engine produced during or after the 1998 model year for outboard engines and the 1