[Federal Register: June 14, 2005 (Volume 70, Number 113)]
[Rules and Regulations]
[Page 34593-34626]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jn05-27]
[[Page 34593]]
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Part III
Environmental Protection Agency
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40 CFR Parts 9 and 86
Control of Emissions of Air Pollution From New Motor Vehicles: In-Use
Testing for Heavy-Duty Diesel Engines and Vehicles; Final Rule
[[Page 34594]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 86
[OAR-2004-0072; AMS-FRL-7922-4]
RIN 2060-AM17
Control of Emissions of Air Pollution From New Motor Vehicles:
In-Use Testing for Heavy-Duty Diesel Engines and Vehicles
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: We are establishing a manufacturer-run, in-use emissions
testing program for 2007 and later model year heavy-duty diesel
vehicles. The ground-breaking in-use test program will require engine
manufacturers to measure exhaust emissions from their diesel engines
using portable emissions measurement systems. Also for the first time,
all manufacturers will be regularly providing EPA with a significant
quantity of emissions data generated from engines used in regular
service, which EPA will evaluate to ensure the engines comply with
specified emissions requirements. The rule is a result of an agreement
between EPA and the Engine Manufacturers Association. This rule
advances EPA's clean diesel activities by helping to ensure that the
benefits of more stringent emission standards are realized under real-
world driving conditions.
DATES: This final rule is effective August 15, 2005.
The incorporation by reference of certain publications listed in
this regulation is approved by the Director of the Federal Register as
of August 15, 2005.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. OAR-2004-0074. All documents in the docket are listed in the
EDOCKET index at http://www.epa.gov/edocket. This rule relies in part
on information related to our November 2002 final rule, which can be
found in Public Docket A-2000-01. This docket is incorporated by
reference into the docket for this action. Although listed in the
index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
EDOCKET or in hard copy at the Air Docket in the EPA Docket Center,
EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: U.S. EPA, Office of Transportation and
Air Quality, Assessment and Standards Division hotline at (734) 214-
4636 or asdinfo@epa.gov., or alternatively Carol Connell (734) 214-4349
or connell.carol@epa.gov
SUPPLEMENTARY INFORMATION:
Regulated Entities
This action will affect you if you produce or import new heavy-duty
diesel engines which are intended for use in highway vehicles such as
trucks and buses, or produce or import such highway vehicles, or
convert heavy-duty vehicles or heavy-duty engines used in highway
vehicles to use alternative fuels.
The following table gives some examples of entities that are likely
to be affected by these regulations:
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Examples of potentially regulated
Category NAICS codes \a\ SIC codes \b\ entities
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Industry................................. 336112 3711 Engine and Truck Manufacturers.
336120
Industry................................. 811112 7533 Commercial Importers of Vehicles
811198 7549 and Vehicle Components.
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\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.
This list is not intended to be exhaustive, but rather provides a
guide regarding entities likely to be regulated by this action. To
determine whether particular activities may be regulated by this
action, you should carefully examine the regulations. You may direct
questions regarding the applicability of this action to the person
listed in ``FOR FURTHER INFORMATION CONTACT.''
B. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. OAR-2004-0074. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Documents in the official
public docket are listed in the index list in EPA's electronic public
docket and comment system, EDOCKET. Documents may be available either
electronically or in hard copy. Electronic documents may be viewed
through EDOCKET. Hard copy documents may be viewed at the EPA Docket
Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. Docket in The EPA Docket Center Public Reading Room is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744.
This rule relies in part on information related to our November
2002 final rule, which can be found in Public Docket A-2000-01. This
docket is incorporated by reference into the docket for this action,
OAR-2004-0074.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/ Or you can go to the federal-
wide eRulemaking site at http://www.regulations.gov.
An electronic version of the public docket is available through
EDOCKET. You may use EDOCKET at http://www.epa.gov/edocket/ to view
public comments, access the index listing of the contents of the
official public docket, and to access those documents in the public
docket that are available electronically. Once in the system, select
``search,'' then key in the appropriate docket identification number.
Outline of This Preamble
I. Overview
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A. Summary of the Rule
B. Background on the Origins of This Rule
C. Historical Context
1. Genesis and Description of NTE Standards
2. Current EPA In-Use NTE Testing
3. Plans for Nonroad Diesel Engine In-Use NTE Testing
D. California's Intent to Adopt an In-Use NTE Test Program
II. Details of the Rule
A. Applicability
B. Engine Family Selection
1. Number of Engine Families
2. Treatment of Nonconforming Engine Families
3. Small or Unavailable Engine Families
4. Engine Families Unsuitable for Testing
C. Phase 1 Testing Scheme
1. Focus of Initial Testing
2. Engine Family Evaluation Criteria and Outcomes
D. Phase 2 Testing Scheme
1. Initiation and Focus of Additional Testing
2. Number of Engines and Test Conditions
E. Vehicle Pass Criteria
F. NTE Threshold Specification
1. Not-to-Exceed Standards
2. Existing In-Use Compliance Margins
3. New In-use Measurement Margin for Portable Measurement
Systems
i. Pilot Program Accuracy Margins
ii. Final Program Accuracy Margins
G. Considerations in Deciding on Remedial Action
1. Manufacturers' Supplemental Information
2. EPA's Testing and Supplemental Data
3. Other Information
H. Quantity of Data Collected
I. Screening, Adjustment, and Mileage and of Test Vehicles
J. Test Conditions
K. Reporting Requirements
1. Comprehensive In-Use Testing Reports
2. Notification of Vehicle Failures
3. Carve Outs, Deficiencies, or Other NTE Control Area
Exclusions
4. Incomplete, Invalid, or Voluntary Tests
L. Measurement of Emission
1. Pollutants and Other Emissions
2. Portable Emission Measurement Systems--Status and
Availability
3. Measurement Accuracy Margin Development Program
M. Pilot Program
N. Public Availability of In-Use Testing Data
O. Implications for Other EPA Programs
1. EPA Testing and Supplemental Information
2. Selective Enforcement Audit (SEA) Testing
3. Deterioration Factor (DF) Testing
P. Limitations of Warranty Claims
III. Economic Impact
IV. Public Participation
V. Statutory and Executive Order Review
VI. Statutory Provisions and Legal Authority
I. Overview
This section summarizes the manufacturer-run, in-use Not-to-Exceed
(NTE) testing program for on-highway, heavy-duty diesel vehicles and
engines. It also contains background on the genesis of the rule, an
overview of the origin and application of EPA's NTE emission standards,
and a brief description of our ongoing in-use NTE. More detailed
information on the NTE standards for heavy-duty diesel engines is
contained in section II. F. 1. of this preamble.
A. Summary of the Rule
We are establishing a manufacturer-run, in-use NTE testing program
for vehicles with heavy-duty diesel engines, beginning in calendar year
2005. The entire program is being adopted largely as we proposed in the
Federal Register on June 10, 2004 (69 FR 32804) and June 21, 2004 (69
FR 34326). There will be a pilot program in calendar years 2005 and
2006 for gaseous pollutants (i.e., nonmethane hydrocarbons (NMHC),
carbon monoxide (CO), and oxides of nitrogen (NOX)). In
calendar years 2006 and 2007, there will be a pilot program for
particulate matter (PM). Subsequent to these programs, the fully
enforceable in-use test program begins. Therefore, the enforceable
program starts in 2007 for gaseous pollutants and 2008 for PM. In those
years, the test program will apply to 2007 and later model year
engines.
This testing program addresses a long standing need to monitor the
emissions performance of the engines installed in these on-highway
vehicles when they are operated under a wide range of real world
conditions. It is specifically intended to monitor compliance with the
NTE exhaust emission standards and to help ensure that heavy-duty
diesel engines will comply with all applicable emission standards
(e.g., including those based on the Federal Test Procedure (FTP))
throughout their useful lives. Background on our NTE standards is
presented in sections I. B. and C. of this Preamble.
The new testing program will, for the first time, require engine
manufacturers to assess in-use exhaust emissions from heavy-duty diesel
vehicles using onboard, portable emission measurement systems during
typical operation on the road. Previously, engine emissions testing
involved removing the engine from the vehicle and testing the engine in
a laboratory on an engine dynamometer. Starting in the mid-1990s, EPA
facilitated research into portable systems by developing and using
prototype systems on a more limited basis in its compliance programs.
Vehicles were instrumented with portable systems to measure their
emissions performance during real-world operating conditions. It became
clear that these systems offered advantages over conventional
approaches to assess in-use exhaust emissions from engines for design
improvement, research, modeling, and compliance purposes.
Under the program, we will designate a certain number of heavy-duty
diesel engine families for testing. Generally, no more than 25 percent
of a manufacturer's engine families would be designated in any single
year. We expect manufacturers will use their existing customer
relationships and create new lines of communication with customers to
recruit appropriate test vehicles from fleets or individual owners.
Each selected vehicle will be equipped with a portable emission
measurement system and driven by its normal operator, with a normal
payload, over its regular driving route. All data and test results will
be reported to EPA on a regular basis. The manufacturer of a designated
heavy-duty engine family will pay for all of the expenses associated
with the planning, vehicle procurement, testing, and data reporting.
The test program is composed of two phases. In the first phase of
testing (Phase 1) the manufacturer will test a minimum of five and a
maximum of 10 vehicles per engine family selected for testing. If five
out of the first five vehicles, or five out of the first six vehicles
pass a specified vehicle pass criteria, or vehicle testing criteria, no
further testing or other data relating to that diesel engine family
will be required from the manufacturer that year. However, we may
choose that engine family for testing again in a later year. If the
above conditions are not met, then a total of 10 vehicles will be
tested in Phase 1. If eight out of the 10 vehicles pass the vehicle
testing criteria, no further testing or other data relating to that
diesel engine family will be required from the manufacturer for that
year.
In all other cases, we will decide on a course of action depending
on the number of vehicles from the designated engine family that fail
to pass the vehicle testing criteria and other factors. In making our
decision, we will thoroughly review the test results, consult with the
engine manufacturer, allow the manufacturer to provide additional data,
and consider other pertinent information. The action may include, but
is not limited to, one of the following:
1. No further action because no significant nonconformance issues
are indicated;
2. Initiate the second phase of testing (Phase 2); or
3. Seek some form of remedial action.
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If five or fewer of the Phase 1 test vehicles satisfy the vehicle
pass criteria, EPA may require the manufacturer to conduct Phase 2
testing. If only six or seven of the Phase 1 test vehicles pass the
vehicle pass criteria, EPA may require the manufacturer to conduct
Phase 2 testing under these regulations if the manufacturer agrees to
perform such testing. However, if Phase 2 testing is conducted for any
reason, even if the manufacturer elects to pursue the next phase of
testing voluntarily, we may direct that up to 10 additional vehicles be
tested. In this phase, we may also focus testing on one or more engine
configurations within the engine family. Additionally, we may specify
certain driving routes or other driving conditions (e.g., geographic
conditions or time of year). The purpose of these additional
specifications is to better understand how widespread or under what
conditions the Phase 1 test vehicles are failing to pass the vehicle
pass criteria. In those instances, the specifications would be based on
the Phase 1 test conditions that indicated a potential nonconformity.
As with Phase 1 testing, any remedial action we may choose to
pursue based on Phase 2 testing will be made only after a thorough
review of the test results, consultation with the engine manufacturer,
and consideration of other pertinent information.
The in-use testing program is primarily designed as an information-
gathering process that will inform EPA's decision-making. The results
of in-use testing for any particular engine family will not necessarily
lead to, or necessarily insulate an engine family from, appropriate
remedial actions, depending on the particular results of the testing
and other information in EPA's possession. However, EPA believes that
the results of the in-use testing and information gathered by the
program will be a critical resource for EPA in determining how to
direct our limited resources.
We expect that the wealth of in-use test data generated by the
program will have a number of valuable uses in addition to monitoring
heavy-duty diesel engines for NTE compliance purposes under the
program. For example, though EPA would not engage in routine NTE
testing of engines or engine families that satisfy the Phase 1 test
criteria unless new information indicates that a nonconformity exists,
we may use the in-use data along with other information to make
independent evaluations about the possible need to pursue further
testing or actions. We may also use the information in the development
of in-use emission factors for emissions and air quality modeling.
Further, manufacturers have told us that they expect the proposed
program will fortify the traditional laboratory-based engine
development process. This will be done by enhancing a manufacturer's
ability to evaluate the performance of the engine and emissions control
system under real world operating conditions and use, the results of
which may be used to create cleaner and more durable future engine
designs. Finally, the in-use test data will also be available to the
public for review and analysis.
As previously described, the in-use NTE testing program will be
fully enforceable beginning in 2007 for gaseous pollutants and 2008 for
PM. To ensure a successful launch of this new program, there is a
mandatory pilot program for gaseous emissions in calendar years 2005
and 2006, and 2006 and 2007 for PM using only the first phase (Phase 1)
of testing. During these years both EPA and the heavy-duty diesel
engine manufacturers will gain valuable experience with the in-use
testing protocols, and the generation, interpretation, and reporting of
in-use emissions data. If an engine family fails to meet the vehicle
pass requirements of Phase 1 testing under the pilot program, we will
not pursue any form of remedial action based solely on that data.
However, we may utilize such information in conjunction with our own
test data and other information to assess or pursue any enforcement or
remedial action that otherwise may be authorized during that time.
The success of this testing program depends on ensuring that the
new onboard, portable measurement systems are correctly measuring
exhaust emissions in the field. To this end, we are establishing
measurement ``accuracy'' margins for these new systems. The purpose of
the margins is to account for the emissions measurement variability
associated with these units in the field. During the pilot program
years, manufacturers will use interim margins that we believe represent
an upper bound of the possible instrumentation variability based on our
experience with portable and laboratory measurement systems. Accuracy
margins for the fully enforceable program are being developed through a
comprehensive research, development, and demonstration program. The
program is described in a Memorandum of Agreement and summarized in
section II. L. 3. of this preamble.
B. Background on the Origins of This Rule
On October 6, 2000, we published a final rule that promulgated new
emission standards for on-highway heavy-duty engines. See 65 FR 59896.
The final rule included new standards, applicable to 2007 and later
model year heavy-duty diesel engines, called NTE standards. These
standards are designed to apply under any conditions reasonably
expected to occur during normal vehicle use. The test procedure for the
NTE standards is different from most previous test procedures in that
it is not based on a rigidly timed test cycle, but instead allows
testing at a wide, though bounded, range of engine and ambient
conditions that can occur in normal vehicle operations.
These NTE standards, as well as other provisions of the final rule,
were particularly designed to ensure that engines and vehicles
manufactured to meet the FTP standards over the engine certification
test cycle in the laboratory continued to effectively control emissions
under any conditions reasonably expected to occur during normal vehicle
use. The final rule described our concerns regarding additional factors
that may jeopardize the emission reductions expected in-use from the
standards promulgated in that rule. See 65 FR at 59910 (October 6,
2000). Among these factors was the absence of an effective in-use
compliance program for heavy duty engines and vehicles. We noted that
we had received broad support from states, environmental organizations,
and industry to move forward with developing a proposal to address this
issue. The Engine Manufacturers Association (EMA) committed to work
diligently and cooperatively with EPA and the California Air Resources
Board (CARB) to resolve the open questions in a timely fashion. See 64
FR 58472, 58514 (October 29, 1999).
EMA and certain individual engine manufacturers challenged EPA's
adoption of NTE standards in several rules.\1\ EPA, CARB and the engine
manufacturers, as well as state and environmental organizations,
engaged in lengthy and ultimately productive discussions to settle
these challenges and to go forward with a regulatory program that
included robust measures to ensure that emission controls implemented
to meet EPA and CARB
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standards remain effective under all normal vehicle operation. One
result of these discussions was the identification of the basic program
elements for a manufacturer run, in-use NTE testing program, and an
agreement to go forward with a rulemaking to implement such a program
for on-highway heavy-duty diesel engines.\2\ Today's action essentially
completes that rulemaking process.
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\1\ See International Truck et al. v. EPA, (DC Cir Nos. 00-1510
and 00-1512); EMA et al v. EPA (DC Cir. Nos. 01-1129 and 02-1080);
International Truck v. EPA, No. 01-1137; EMA v. EPA, (DC Cir. No.
00-1066); and EMA v. EPA, (DC Cir. No. 03-1007)
\2\ See Final Settlement Agreement, dated June 2, 2003, in the
cases cited above.
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C. Historical Context
1. Genesis and Description of NTE Standards
Traditionally, heavy-duty diesel vehicles and engines have been
certified to exhaust emission standards in the laboratory. More
specifically, the engine is tested separately from the vehicle using an
engine dynamometer and a prescribed ``driving cycle.'' Monitoring for
compliance with the applicable emission standards during the life of
these vehicles (i.e., in-use) was also determined by removing the
engine from the vehicle and then testing it using the same laboratory
measurement procedures. Several years ago we became concerned that in-
use emissions might inappropriately exceed the applicable standards
when engines were operated under conditions not found during
traditional laboratory testing (i.e., off-cycle emissions). An
investigation into off-cycle emissions performance confirmed that
advances in engine technology had allowed some manufacturers to design
engines with control strategies which resulted in substantially greater
levels of emissions during typical real-world operating conditions than
were emitted during the laboratory testing cycle required for
certification.
To close the gap between laboratory and real world emissions
performance, and to deter manufacturers from using such strategies in
the future, we developed NTE emission standards for heavy-duty diesel
engines. The NTE requirements establish an area or zone under the
torque curve of an engine where emissions must not exceed a specified
value for any of the regulated pollutants.\3\ The provisions also
define a specific range of operating conditions, i.e., temperature,
altitude, and humidity. The test itself does not involve a specific
driving cycle of any specific length, i.e., mileage or time, rather it
involves all driving that could occur within the bounds of the NTE
control area. The vehicle (or engine) is operated under conditions that
may reasonably be expected to be encountered in normal vehicle
operation and use, including operation under steady-state or transient
conditions and under varying ambient conditions. Within the NTE control
area, emissions must not exceed a specified multiple of the underlying
FTP standards. For heavy-duty diesel engines, this multiple is
generally 1.25 or 1.50 times the applicable FTP standards.
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\3\ Torque is a measure of rotational force. The torque curve
for an engine is determined by an engine ``mapping'' procedure
specified in the Code of Federal Regulations. A graphical
representation of the NTE control area is contained in the Technical
Support Document accompanying this proposed rule.
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Initially, the NTE requirements were a key provision in consent
decrees with several manufacturers of heavy-duty diesel engines that
resulted from the investigation described above. This new requirement
became effective in 1998 for most manufacturers involved in those
consent decrees, and by November 2002 had been applied for such
manufacturers to the NOX standards set to go into effect in
model year 2004. NTE requirements are currently being used as a
screening tool for 2004 through 2006 model year engines not covered by
the consent decrees. The NTE requirements will be mandatory for all
2007 and later heavy-duty diesel engines. We also promulgated NTE
standards for certain other mobile sources.\4\
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\4\ The use of NTE testing as a screening tool for 2004-2006 on-
highway heavy-duty diesel engines is discussed in Advisory Circular
24-3. The final rule applying the NTE to 2007 and model year engines
is published at 65 FR 59896 (October 6, 2000). Other final rules
promulgated by EPA extended the NTE approach to new marine
compression-ignition engines at or above 37 horsepower, 64 FR 73300
(December 29, 1999) and 67 FR 68242 (November 8, 2002); and to a new
and more stringent phase of on-highway heavy duty engine standards
66 FR 5002 (January 18, 2001).
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The NTE test can be conducted in an emissions testing laboratory
using an appropriate dynamometer or while the vehicle is being used on
the road. It is this last feature that makes NTE testing a very
powerful in-use compliance monitoring tool. In-use testing and
compliance become much easier with the NTE standards since emissions
may be sampled during normal vehicle use on the road using portable
emission measurement systems. As already mentioned, traditional
laboratory engine testing over a very specific driving schedule
requires the engine be removed from the vehicle rendering in-use
testing prohibitively cumbersome and expensive. Further, engine-based
testing cannot account for the drive train and sensor interactions
which occur during normal vehicle operation. As such, testing during
normal vehicle use, using an objective numerical standard, makes
enforcement easier and provides more certainty of what is occurring in-
use versus a fixed laboratory procedure.
2. Current EPA In-Use NTE Testing
We have been conducting our own in-use NTE testing of heavy-duty
diesel engines for the past four years. Over that period, an average of
40 on-highway vehicles were tested annually. Vehicles are procured
through the voluntary participation of commercial and municipal fleets
and emissions are tested during normal service operation. Portable
emission measurement systems are installed on-site at the fleet's
facility before the vehicle begins its service day. EPA uses a
prototype portable sampling system which measures hydrocarbons (HC),
carbon monoxide (CO), and oxides of nitrogen (NOX). Our
experience with this program has aided us in developing today's final
rule for a manufacturer-run, in-use NTE test program.
3. Plans for Nonroad Diesel Engine In-Use NTE Testing
On June 29, 2004, we published NTE requirements that accompany our
new transient-cycle emission standards for nonroad diesel engines (69
FR 38957). This new test cycle will be phased into the certification
requirements between 2011 and 2013, depending on an engine's horsepower
rating. The NTE provisions are similar to those described in this
notice for on-highway heavy-duty diesel engines. Presently, we are
developing an outline for a proposed manufacturer-run, in-use NTE test
program for nonroad diesel engines covered by the new requirements. We
expect this program will have similar characteristics to today's rule,
but will address some unique issues pertaining to the nonroad market.
Among these are such things as the widely varying power ranges of
nonroad engines (including those much smaller and much bigger than
highway engines), and broad array of equipment applications that may
use the same engine type or model. We expect the program to have a
pilot program similar to the pilot program in today's rule and to be
initiated consistent with the introduction of emission control
requirements for nonroad engines built in conformance with the new
standards, which are based on aftertreatment. The resulting
implementation date may be as early as 2011.
[[Page 34598]]
D. California's Intent To Adopt an In-Use NTE Test Program
California's involvement in the development of this program was
critical in assuring that engine manufacturers are subject to a
consistent national in-use NTE test program. CARB intends to adopt an
identical program soon. EPA and CARB expect to coordinate in the annual
selection of engine families to be in-use tested and to work together
in determining whether Phase 2 testing is warranted for families where
the number of passing engines in Phase 1 does not automatically lead to
no further testing. CARB has its own authority and decision process in
determining remedial action for failing families, but CARB expects to
work with EPA and the manufacturers in this process.
II. Details of the Rule
This section presents the details of the two-phase in-use NTE
testing program for heavy-duty diesel vehicles. It focuses primarily on
the fully enforceable program that will begin with the 2007 model year
for gaseous pollutants and 2008 for PM. A number of the special
features for a pilot program during the two years preceding each of the
fully enforceable dates described above are also described. Key aspects
of the pilot program are further summarized in section II. M. of this
preamble.
We have initiated a comprehensive research, development, and
demonstration program that is designed to identify new accuracy
measurement margins for portable measurement devices. When completed,
the accuracy margins are expected to be adopted for use in the fully
enforceable program. EPA has modified the testing requirements during
the pilot program for manufacturers that participate in the accuracy
margin development effort. In addition, the fully enforceable program
for either gaseous emissions or PM may be postponed if the process of
identifying the final accuracy margins is significantly delayed beyond
the originally scheduled completion dates. The program for developing
the measurement accuracy margin is described in section II. L. and the
implications of this program are described throughout this preamble as
appropriate.
The in-use NTE testing program we are promulgating today is nearly
identical to the program we proposed in the Federal Register on June
10, 2004 (69 FR 32804) and June 21, 2004 (69 FR 34326). The features of
the program that were revised based on public comments received on the
proposed rule are described in this section. Our response to the
significant public comments is contained in the Summary and Response to
Comments document that accompanies this final rule.
A. Applicability
The requirements apply to diesel engines certified for use in
heavy-duty vehicles (including buses) with gross vehicle weight ratings
(GVWR) greater than 8,500 pounds. However, the requirements do not
apply to any heavy-duty diesel vehicle that was certified using a
chassis dynamometer under our CAP 2000 certification program, including
medium-duty passenger vehicles with GVWRs of between 8,500 and 10,000
pounds. The manufacturer of heavy-duty diesel engines subject to the
program is responsible for all of the costs associated with project
planning, vehicle procurement, testing, and reporting.
We are establishing a fully enforceable, two-phase test program for
heavy-duty diesel engines beginning in 2007 for gaseous pollutants and
2008 for PM. In those years, the fully enforceable test program will
apply to 2007 and later model year engines. We are also establishing a
mandatory pilot program for gaseous pollutants in calendar years 2005
and 2006, and for PM in calendar years 2006 and 2007. Under the gaseous
emission pilot program, 2002 through 2006 model year vehicles may be
tested. Under the PM pilot program, 2002 through 2007 model year
vehicles may be tested. The pilot program will utilize only the first
phase of the two-phase program developed subsequent fully enforceable
program.
We had originally proposed to require emissions testing for PM
concurrently with gaseous emissions. In doing so, we acknowledged that
more development work was needed before portable PM-measurement systems
were available. However, it appeared possible to complete this work
prior to the start of the pilot program in 2005. The engine
manufacturers commented that the instrumentation to measure PM
emissions onboard a vehicle was not available. Further, they stated
that a PM requirement should not be included in the program until such
time as validated, properly field-tested onboard devices become
commercially available. Our evaluation of the status of portable PM
measurement technology shows that the development of portable devices
has progressed, but not as quickly as anticipated. We currently expect
portable PM measurement systems will be available for 2006. Therefore,
we have delayed the start of the PM pilot program one year until that
date, i.e., 2006. Similarly, the enforceable program for PM will now
start in 2008. A more detailed discussion of both gaseous and PM
portable measurement systems is presented in section II. L.
Engine manufacturers commented that the model year applicability
for the pilot program was too broad. Specifically, they argued that the
plot should be limited to 2005 and 2006 model year vehicles because
some 2002 through 2004 engine families were not specifically certified
to meet NTE standards. We agree with the manufacturers to the extent
that engine families which were not certified in compliance with the
NTE requirements should not be tested in the manufacturer-run program.
However, their recommended exclusion is also too broad. Instead, we
will include model years back through 2002 in the pilot program, but we
will only select engines which have been designed to comply with the
NTE. This includes engines certified under consent decree requirements,
California NTE regulations, and the voluntary NTE provisions contained
in EPA guidance document VPCD 98-13 and Advisory Circular 24-3.\5\ EPA
will only select engine families for which the manufacturer's Statement
of Compliance specifically describes the engine as being designed to
comply with the NTE either by regulation or voluntarily. For engines
not designed to comply with the NTE, EPA does reserve the right to use
the NTE as a means to evaluate the appropriateness of a manufacturer's
auxiliary emissions control devices (i.e., screen for defeat devices)
as explained in the EPA guidance documents above. In such a case, EPA
would conduct the testing and would not require the manufacturers to do
so under the in-use program.
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\5\ Add titles, etc., for the two documents here.
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B. Engine Family Selection
1. Number of Engine Families
EPA currently estimates that 71 heavy-duty diesel engine families
are being certified by 13 manufacturers that would potentially be
eligible for in-use testing under this proposed program. Our goal in
deciding how many engine families should be tested each year is to
conduct enough testing to assure in-use compliance with the applicable
emission standards, while at the same time keep the program from being
overly burdensome for the engine manufacturers.
As a general premise, we believe it is a reasonable test all of a
manufacturer's
[[Page 34599]]
heavy-duty diesel engine families over a four-year period. So, we will
to designate up to 25 percent of a manufacturer's total number of
engine families for testing per calendar year. The number of engine
families that are tested in a given year will be based on the actual
number of engine families certified by that manufacturer in that year,
rounded up or down as appropriate. However, for the purpose of
calculating the number of engine families certified in a given year, we
will only include engine families with a production volume greater than
1,500 engines. This designation strategy will provide in-use test data
for most of the diesel engine population and, at the same time, not
overburden manufacturers that have several small production engine
families. If a manufacturer has three or fewer engine families that
exceed the annual 1,500 engine production limit, including when a
manufacturer has no families with production levels above that limit,
we will only test one engine family per year.
We will also cap the maximum number of families designated for
testing over any four-year period to the average number of families for
that manufacturer over that four-year period, rounding up or down as
appropriate.
Several examples showing how many engine families we can designate
each year for testing under the proposed in-use, manufacturer-run
program are provided below. The illustrations are arranged in an
increasing order of complexity. Additional examples and other relevant
information are presented in the Technical Support Document for today's
action.
The first two examples illustrate how we would calculate the annual
number of engine families for testing using the 25 percent per year
limit for engine families above the 1,500 units per year level, and
when a manufacturer only has engine families with annual production
less than 1,500 units per year. First, Manufacturer A has 12 certified
engine families in production in a given model year, and only 8 out of
the 12 families have annual productions levels of over 1,500 engines.
Then the maximum number of engine families we can designate for in-use
testing from Manufacturer A in that calendar year is 2 (i.e., 25
percent of 8 engine families). Second, Manufacturer B has 8 engine
families, all with annual production less than 1500 engines. In this
situation, we are limited to selecting only 1 engine family for testing
in that calendar year.
The next two examples are somewhat more complex. The first of these
examples shows how the four-year limitation (i.e., cap) on the maximum
number of designated engine families works with a constant number of
engine families over time. First, Manufacturer C has 3 engines families
in production in each of four consecutive years, or an average of 3
engine families per year over a four-year period. Additionally, all the
families have annual production volumes over 1,500 units. In this
situation, 1 engine family per year can be designated for testing in
three of the four calendar years. However, no family can be selected in
one of the four years because the number of families tested would
otherwise exceed the average number of families produced over the four-
year period. Second, Manufacturer D produces 7 engine families each
year during a four-year period and all the families are over 1,500
units per year. In this situation, we can select up to 2 engine
families per year under the 25 percent annual limit (i.e., 25 percent
of 7 families is 1.75, which rounds up to 2). So, 2 engine families can
be designated for testing in three of the four calendar years, but only
1 family can be tested in a fourth year because the four-year cap on
the maximum number of engines tested would otherwise be exceeded.
The last example is the most complex. It once again illustrates how
the four-year cap on the maximum number of designated engine families
applies, but in this case for a scenario were the number of engine
families varies over time, and when the fully enforceable program is
just beginning (i.e., the 2007 calendar year). Manufacturer E produces
6 engine families in the 2004 through 2009 model years and 7 engine
families in the 2010 through 2014 model years. We can order testing for
2 engine families each in 2007, 2008 and 2009 under the 25 percent
annual limit (i.e., 25 percent of 6 families is 1.5, which rounds up to
2 using standard rounding practices \6\). In 2010, however we cannot
order testing of any families because the average number of certified
families in the four years preceding testing (including the current
model year) is 6.25, rounded down to 6. Since we have already tested 6
engine families in the previous three years, we cannot test another
engine family in the fourth year because the total number of engine
families in the four-year period would be greater than the average
number of engine families produced in the past four years (i.e., 6). In
2011, we can order the testing of 2 families under the 25 percent
annual limit. Here, the average number of engine families in the four
years preceding testing (including the current model year) is 6.5. This
rounds down to 6, again using standard rounding practices. Since we
have only tested 4 engine families in the previous three years, we can
test another 2 engine families in the fourth year. For 2012 the average
number of engine families in the four-year period is 6.75 (6 families
in model year 2009 and 7 families in model years 2010 through 2012).
Rounding up from 6.75, we can order testing for 7 engine families in
the four-year period prior to 2012. Since we have only ordered testing
for 4 families in the previous three years, we can order testing for 2
families under the 25 percent annual limit in 2012. Similarly, we can
order the testing of 2 families in 2013. However, in 2014, we can order
testing for only 1 engine family because the average number of families
produced in the applicable four-year period is 7 and we have already
ordered testing for 6 engine families in the previous three years.
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\6\ See, ``Guide for the Use of the International System of
Units (SI), NIST Special Publication 811, 1995 Edition, National
Institute of Standards and Technology, U.S. Department of
Commerce.'' Under the rounding convention contained in this
reference, when the first digit discarded is exactly 5, the last
digit retained should be rounded upward if it is an odd number, but
no adjustment made if it is an even number.
---------------------------------------------------------------------------
Only the most recent and accurate sales information will be used to
identify engine families with annual U.S.-directed production volumes
of 1,500 engines or less when determining the potential number of
engine families we may require a manufacturer to test in any year. When
an engine family has reached the end of its production, the actual
sales for an engine family that is already required to be submitted to
EPA at the end of each model year as part of the certification program
will be used for this purpose. If the engine family has not ended
production and final sales are not available, then we may use the sales
projection that is provided as part of a manufacturer's certification
application.
After the number of engine families that are eligible for in-use
testing is determined for a calendar year, we may select any engine
family for testing that a manufacturer has in production that model
year, or any other engine families produced by the manufacturer in
previous model years covered by the testing program. We also reserve
the right to designate any engine family previously tested under this
program in a subsequent calendar year. This will allow us to evaluate
the emission performance of heavy-duty diesel vehicles as they
accumulate mileage over a number of years. It will also allow us to
assess a manufacturer's remedy of any previous
[[Page 34600]]
nonconformance problem, which was discovered under the proposed in-use
testing program. When evaluating past model years for testing, we will
also consider such factors as the likely number of vehicles remaining
in service and their perspective mileage relative to their certified
useful life.
We intend to make our engine family selections by approximately
June 30 of each calendar year. Waiting until the mid-point of the
calendar year to select engine families for testing increases the
likelihood that EPA will be able to choose from a manufacturer's entire
product offering for that same model year. Typically, all of a
manufacturer's engines for a given model year are covered by a
certificate of conformity by the mid-point of that same calendar year.
For example, all 2007 model year engines are expected to be certified,
in most cases, by June 30, 2007. This also allows EPA to calculate the
number of engine families to be ordered for testing in a given calendar
year without having to continually update that number and order further
testing. In the event one or more engine families are certified by a
manufacturer after June 30, we will update our calculation of the
number of engine families we can order tested in that calendar year
and, if appropriate, order further testing. We still may select any
engine family by the end of that calendar year for testing, including
the newly certified family, with the understanding that the
manufacturer is allowed the same period of time for testing and
reporting results from each engine family from the date of selection.
Regarding the testing and reporting period, we are allowing 18
months from the time an engine family is designated for testing until
the results must be reported to us. A manufacturer may request up to
six additional months to complete and report Phase 2 test results if
there is a reasonable basis for needing more time. Further, a
manufacturer may request an additional six month extension. More
details on the testing and reporting period is presented in section
II.K.1.
Engine manufacturers commented that EPA should specify a single
point in time for identifying engine families that must be tested for
that calendar year's selection since the number of certified families
changes over the year. We believe the proposed selection protocol
fairly balances our desire to maximize the number of engine families
that may be designated for testing in any year, with a manufacturer's
need for certainty in its planning process and a manageable testing
burden. As already noted, manufacturers normally certify all or most of
their engine families by June 30 of each year. So a manufacturer will
know either its complete liability under the in-use testing program or
the bulk of its responsibility by that time. Because of the lead time
normally associated with engine development and the certification
process, a manufacturer planning to certify an engine family after
approximately June 30 should calculate the possible in-use testing
exposure associated with that action and plan accordingly relative to
the expenditure of resources. This does not seem overly burdensome,
since all selected engine families are provided the same testing and
reporting period, regardless of the date the family was selected for
testing (see section II.K.1. of this preamble for a discussion of the
testing and reporting period). Therefore, we are adopting the engine
family selection protocol as proposed.
2. Treatment of Nonconforming Engine Families
If there is clear evidence of an emissions nonconformity with
respect to one or more of that manufacturer's families, a manufacturer
may be required to test a number of engine families that exceeds the
numerical limits described in Section II.B.1. above. More specifically,
we may require any engine family for which such a determination is made
be tested in the manufacturer-run, in-use NTE testing program in any
subsequent year without counting toward the otherwise applicable limit
on the number of families we may select in any year.
For the purposes of the in-use testing program only, if an engine
family was subject to a recall action (voluntary or mandatory), that
failure is clear evidence of a nonconformity for that engine family and
any carryover engine family produced in a prior or subsequent model
year.\7\ \8\ The remedied engine family may have been normally selected
for testing under the proposed in-use testing program, but did not pass
the vehicle pass criteria and was subject to a recall action.
Alternatively, the remedied family may have been recalled based on the
results of an EPA in-use testing program. This linkage of carryover
engine families helps ensure that manufacturers will be sufficiently
motivated to remedy in a timely manner any noncompliance which is
strongly suspected to cut across multiple engine families. As with
other aspects of this program, we will consult with the manufacturer
when contemplating a determination of clear evidence. An engine family
selected using the ``no count'' designation may have never been tested
under the proposed manufacturer-run, in-use NTE testing program, or it
may have been tested but no remedial action was initiated based on the
test results.
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\7\ Manufacturers designate carryover engine families during the
certification process. The carryover designation indicates that the
engine family for which a certificate is being requested is nearly
identical to an engine family which has been previously certified.
In such instances, the emissions results from the previously
certified engine family are directly applied or carried over to the
engine family for which a certificate is being requested.
\8\ Section 207 (c) of the Clean Air Act (CAA) authorizes EPA to
require manufacturers to recall vehicles or engines for the purpose
of remedying noncompliance with EPA regulations that occur during
the regulatory useful life of the vehicle or engine. EPA may only
require a recall when the noncompliance involves a substantial
number of a class or category of vehicles or engines which have been
properly maintained and used. (See CAA Section 207(c)). The
procedures EPA uses to administer emissions recalls are described in
40 CFR Part 85 Subpart S.
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3. Small or Unavailable Engine Families
We recognize the possibility that a manufacturer may find it
difficult or impossible to locate a sufficient number of vehicles from
a designated diesel engine family to complete testing even after a
diligent and good faith recruiting effort. This might especially happen
for families with limited sales, or if a significantly older model year
is designated for testing. Of course, we will attempt to avoid such an
outcome in our engine family selection process. However, if a
manufacturer encounters this problem and cannot complete either the
Phase 1 or Phase 2 testing in the time frame or manner required, the
manufacturer may ask us to modify the testing requirements for such
engine family or designate a different diesel engine family for
testing.
4. Engine Families Unsuitable for Testing
The Detroit Diesel Corporation (DDC) commented that certain chassis
and applications are entirely unsuited for in-use testing, and that
these should be excluded from the program. As an example, the company
identified fire truck and emergency vehicles with unique engine
families as falling into this category because they can not be
instrumented without compromising the utility of the chassis. Also, DDC
suggested that there are numerous applications where interior space
constrains would not allow mounting the test equipment inside the cab
and still provide for the presence of a technician. In this latter
regard, the company noted that weatherproof systems are yet to be
developed by instrument manufacturers. Consequently, DDC recommended
that EPA not require in-use testing of engine
[[Page 34601]]
families constrained by such application considerations.
In general, EPA will avoid selecting engine families, and vehicle
chassis and applications where testing with portable emissions sampling
systems is infeasible, impractical, or unsafe. We anticipate that such
testing challenges would generally be isolated to a specific sub-class
of vehicle chassis or applications. Therefore, engine families are not
expected to be wholly eliminated from consideration for reasons of
portable testing incompatibility. To the extent incompatible engine
families exist, they will likely be characterized by small volume
annual production of fewer than 1,500 units. In general, these low
production engine families will be selected for testing less frequently
than their larger volume counterparts which makes it easier to avoid
compatibility issues.
We also believe that the in-use testing requirements provide
manufacturers sufficient latitude to avoid selecting vehicles which are
not suitable for in-use testing. In our own in-use testing with
portable emission measurement devices, we have successfully tested both
fire trucks and emergency vehicles. Additionally, the final regulations
allow a manufacturer to reject a particular vehicle from the program if
it is found to be unsuitable without prior notification to EPA. Any
rejected vehicle must be replaced with another perspective test
vehicle, and the rejection reported to us in the manufacturer's normal
in-use testing reports. We will provide additional guidance on the
conditions that must be satisfied to reject a vehicle for this purpose.
We expect that concerns about the suitability of portable testing
will continue to diminish as portable emissions measurement systems
evolve into more compact, durable, user-friendly devices.
C. Phase 1 Testing Scheme
1. Focus of Initial Testing
The first phase of testing, Phase 1, is intended to quickly screen
a designated heavy-duty diesel engine family for conformity with the
applicable NTE standards. If enough of the engines tested from the
family pass the initial screening, no additional testing of that family
is required under the in-use testing program in that year. If the early
test results from Phase 1 indicate a potential nonconformity, then
several more vehicles must be tested to generate additional information
regarding the significance of any potential problem, or whether more
testing in the next phase of the program, Phase 2, is needed to further
evaluate the emissions performance of that engine family.
2. Engine Family Evaluation Criteria and Outcomes
For Phase 1 testing, a manufacturer must test a minimum of five and
a maximum of 10 different vehicles within a designated engine family.
The exact number of vehicles depends on how many of the tests exceed a
specified numerical emissions limit, or the vehicle pass criteria, not
to be confused with the proper maintenance and use criteria (see
section II. E. of this preamble for a description of the vehicle pass
criteria). Requiring up to 10 vehicle tests will provide sufficient
information for us to decide if further testing or other information is
needed to better evaluate a potential nonconformity, or if some form of
remedial action may be warranted. This level of testing will provide a
quick indication of an engine family's emissions compliance without
being overly burdensome to engine manufacturers. Our multi-step engine
family evaluation criteria and the outcomes associated with how many
vehicles pass the in-use testing requirements at various levels within
the testing hierarchy are described below.
A manufacturer will initiate Phase 1 by testing 5 vehicles. If all
five satisfy the vehicle pass criteria (i.e., 5 out of 5 pass), testing
stops and no other action is required of the manufacturer for that
diesel engine family under the program for that year. If only one of
the initial test vehicles fails the vehicle pass criteria, the
manufacturer will test another vehicle. The manufacturer may stop
testing if the sixth vehicle satisfies the vehicle pass criteria (i.e.,
5 out of 6 pass). In the event that neither of the above conditions are
met (i.e., 4 or fewer out of 6 pass), the manufacturer must test a
total of 10 vehicles.
Various outcomes are possible based on the observed number of
vehicle passes or failures from the Phase 1 testing, as well as other
supplemental information. If all four of the additional test vehicles
met the vehicle pass criteria and only two of the original six test
vehicles exceeded the criteria (i.e., 8 out of 10 pass), testing stops
and no other action is required of the manufacturer for that diesel
engine family under the program for that year. When six or seven of the
10 test vehicles satisfy the vehicle pass criteria (i.e., 6 or 7 out of
10 pass), the manufacturer must join EPA in follow-up discussions to
determine whether any further testing, investigations, data
submissions, or other actions may be warranted. In such a case, three
outcomes are possible. First, we may ultimately decide not to take
further action if no significant nonconformity is indicated after a
thorough evaluation of the causes or conditions that caused vehicles in
the engine family to fail the vehicle pass criteria, and a review of
any other supplemental information obtained separately by EPA or
submitted by the manufacturer shows that no significant nonconformity
exists. Testing would then stop and no other action is required of the
manufacturer for that diesel engine family under the program for that
year. Second, we may seek some form of remedial action from the
manufacturer based on our evaluation of the Phase 1 test results and
review of other supplemental information. Third, and finally, the
engine manufacturer may undertake Phase 2 testing, if both EPA and the
manufacturer agree this is the best course of action. Of course, a
manufacturer may always voluntarily conduct Phase 2 testing.
In the event that fewer than six test vehicles comply with the
vehicle pass criteria (i.e., 5 or fewer out of 10 pass), the
manufacturer must consult with us just as when six or seven out of 10
pass as described above. Once again, we may decide not to take further
action if no significant nonconformity is indicated. If a possible
nonconformity is indicated, the consultation may lead us to mandate
Phase 2 testing even if the manufacturer does not voluntarily elect to
do so. In situations where a significant nonconformity is observed
during Phase 1 testing, we may order a recall action for the diesel
engine family in question if the manufacturer does not voluntarily
initiate an acceptable remedial action.
D. Phase 2 Testing Scheme
1. Initiation and Focus of Additional Testing
The primary purpose of Phase 2 test program is to gain further
information regarding the extent to which, and under what conditions,
the vehicles from the designated engine family are failing to pass the
vehicle pass criteria. If appropriate, a manufacturer's testing may be
focused on certain test conditions or a subclass of engines within the
designated heavy-duty diesel engine family as outlined below. As
described previously, EPA and the manufacturer may agree that it is
appropriate to initiate Phase 2 testing if six or seven of the 10 test
vehicles in Phase 1 satisfy the vehicle pass criteria. Phase 2 testing
may also be mandated by us in the event that only five or fewer of the
test vehicles in Phase 1 meet the
[[Page 34602]]
vehicle pass criteria. (See section II. C. for additional information
regarding the conditions under which Phase 2 may be initiated.)
2. Number of Engines and Test Conditions
We may require a manufacturer to test up to 10 vehicles from the
designated heavy-duty diesel engine family under Phase 2. We may, at
our discretion, require the testing of fewer than 10 vehicles. A pass/
fail determination for each vehicle will be made by comparing its
measured emissions to the same vehicle pass criteria used in Phase 1.
Testing up to 10 additional vehicles under this phase of the program
will provide valuable information regarding whether the engine family
conforms with the applicable requirements.
We may direct a manufacturer to test one or more specific engine
and emission control or power configurations (i.e., subclasses) within
the designated engine family. Additionally, we may specify certain
driving routes or other driving conditions (e.g., temperatures,
altitudes, geographic conditions, or time of year). As already
discussed, the purpose of these additional specifications is to better
understand the extent to which, and under what conditions, the vehicles
in the engines family are failing to pass the vehicle pass criteria.
Therefore, the specifications would be based on the Phase 1 test
conditions that indicated a potential nonconformity.
We requested comment on whether EPA should similarly be allowed to
direct a manufacturer to test specific engine configurations, test
routes, and driving conditions for Phase 1 testing. We are not adopting
that requirement based on our review of adverse comments we received
from engine manufacturers. The comment and our response is contained in
section II. J. of this preamble.
E. Vehicle Pass Criteria
Generally, the vehicle pass criteria require measuring the
emissions from the test engine each time it operates for 30 seconds or
more in the NTE control area. The NTE control area is a defined range
of engine operating conditions that are subject to the NTE emission
standards (see section I. C. 1. of this preamble for more information
on the NTE control area). Each excursion into the NTE control area for
thirty or more seconds is called an NTE sampling event. The 30 second
minimum is intended to moderate the influence of short-duration, high
intensity emission spikes that do not have a significant bearing on
overall, real-world emissions in the compliance determination. The
average emission level of the NTE sampling event for each regulated
pollutant is then compared to its corresponding NTE emission threshold.
The NTE emission threshold is the sum of the applicable NTE standard,
any in-use compliance margin already allowed by the regulations, and
the new in-use measurement margin allowance. The vehicle pass criteria
then require a comparison of the number of NTE sampling events for an
individual pollutant that were below the respective NTE threshold to
all of the sampling events from the test for that same pollutant. The
NTE threshold is further described in section II. F. of this preamble.
Also, for the first three years of the program, no sampling event may
be higher than a specific maximum emission limit. The maximum emission
limit for these engine families is described below.
More specifically, all valid NTE sampling events for a pollutant
must be used in the vehicle pass determination. A valid NTE event is
any sample that meets the 30 second minimum period described above,
excluding any engine operation that is exempt from the NTE standards
under the existing regulations. NTE carve-out provisions may either
exclude certain operating points from the NTE engine control area or
exempt engines from the NTE standards when operating in defined regions
of the NTE engine control area. Currently, an engine may also be
allowed to temporarily exceed the NTE standards under certain limited
circumstances under the NTE deficiency provisions.\9\ If 90 percent of
the valid NTE samples on a time-weighted basis for a regulated
pollutant are no greater than the applicable NTE threshold, then the
test engine meets the vehicle pass criteria for that particular
pollutant.
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\9\ For more information on NTE control area limits and
exclusions, see 65 FR 59912, 59914 (October 6, 2000), and 66 FR 5040
(January 18, 2001).
---------------------------------------------------------------------------
However, model year 2007 through 2009 engines must meet certain
additional requirements. For these years, 100 percent of the valid NTE
samples for any regulated pollutant must also be less than two times
(2X) the applicable NTE threshold, except when the engine is certified
to a Family Emission Limit (FEL) for NOX of 0.50 gram per
brake horsepower-hour (g/bhp-hr) or less. In this case, 100 percent of
the valid NTE NOX samples must be less than two times the
NTE threshold or less than 2.00 g/bhp-hr, whichever is numerically
greater. While operation in the area of an approved deficiency or
carve-out is excluded from being a valid NTE event for the purposes of
this in-use testing program, manufacturers must still employ
appropriate emissions control during operation in these regions as
required by the prohibition against defeat devices. For any operation
which occurs within the area of an approved NTE deficiency, we will
compare the measured emissions results to the emissions estimates the
manufacturer provided for that deficiency at the time of certification
so we can determine whether the deficiency requirements have been met.
The 90 percent criterion should provide a good indicator of
compliance with the applicable emission standard, while at the same
time allowing for certain emissions behavior that may be very
infrequent or unusual in nature and, therefore, atypical of overall in-
use operation. We have fashioned the additional maximum NTE criteria
for 2007-2009 model year engines because we believe it appropriately
reflects the capability of current control technology when robustly
designed and properly maintained. We do not envision any situation
where the current technology could not be designed to avoid emissions
above these maximum criteria, even in the atypical situations mentioned
above. EPA will evaluate the need for, and level of, any such NTE
maximum criteria for 2010 and later model year heavy-duty diesel
vehicles based, in part, on data from the proposed in-use test program,
the capability of technology used to comply with the 2010 model year
requirements, and other relevant test information. If we decide that
such criteria are appropriate based on this review, any new
requirements will be established in a rulemaking action. If we take no
action, the maximum NTE criteria will cease to exist after the 2009
model year.
We are adopting the following multi-part methodology for
determining if the engine complies with the 90 percent vehicle pass
criterion for each regulated pollutant. First, find the average g/bhp-
hr emission level for each valid NTE sample for a specific pollutant by
dividing the total mass of measured emissions (e.g., grams) by the
amount of work performed during the NTE event (e.g., brake horsepower-
hour). (Note that this step is also used to determine compliance with
the maximum NTE criteria for 2007-2009 model year engines as described
above.) Second, determine for each valid NTE sampling event, whether
the average emission level is less than or equal to the NTE threshold
for that same pollutant. Third, calculate a time-weighted vehicle pass
ratio for the pollutant, or the number of valid NTE sampling events
that meet the
[[Page 34603]]
applicable NTE threshold compared to the total number of valid NTE
sampling events, weighted by the time of each valid NTE event. To do
this, begin by summing the time from each valid NTE sampling event
where the average emission level for each pollutant is no greater than
the NTE threshold for that pollutant, and then divide this value by the
sum of the engine operating time from all valid NTE samples. The
resulting value is the vehicle pass ratio for that pollutant and test.
However, if any single valid NTE sampling event exceeds 600 seconds or
10 times the length of the shortest valid NTE event, the time
contribution for that event must be limited to the smaller of 600
seconds or 10 times the shortest event for the above calculation. These
conditions on the maximum allowable duration for any single NTE event
are intended to prevent a small number of very long sampling events
from inappropriately overwhelming the time-weighted results.
A vehicle must meet the vehicle pass criteria for every individual
pollutant in order for the vehicle to ``pass'' the test under the terms
of the in-use testing program. Stated differently, failing the vehicle
pass criteria, even for a single pollutant, counts as a vehicle failure
for that particular test.
We want to clarify that the vehicle pass criteria used for the
manufacturer-run, in-use testing program do not correspond specifically
to the criteria for showing compliance to the NTE standards. That is,
the fact that a vehicle meets the vehicle pass criteria under this
program does not mean that the vehicle passes the NTE standards, or
that the engine family is in full compliance with the standards, and
the use of these criteria to show a vehicle ``pass'' in this program
does not indicate that the criteria would be appropriate for NTE
testing in other contexts.
The vehicle pass criteria, along with the engine family evaluation
criteria of the Phase 1 and Phase 2 test schemes (described later), are
designed to help make the best use of manufacturers' and EPA's
resources in determining what further action is appropriate regarding
that engine family. Therefore, the vehicle pass criteria, the
definition of a valid NTE sampling event, the criteria for moving from
Phase 1 to Phase 2, and all others aspects of the in-use testing
program are solely for purposes of this manufacturer run, in-use test
program and are not intended to revise, change, or interpret the NTE
standards, the NTE test procedures, or to define compliance with the
standards.
F. NTE Threshold Specification
The numerical value of the NTE threshold is defined as the
applicable NTE standard, including any compliance margin already built
into the standard for in-use testing, in addition to a new margin to
account for the in-use measurement accuracy of the portable emission
measurement systems. Therefore, these margins are added to the
applicable standard or FEL to determine the numerical in-use compliance
limit (i.e., NTE threshold).
1. Not-to-Exceed Standards
NTE standards applicable to model year 2007 and later heavy-duty
diesel engines apply to the exhaust emissions of non-methane
hydrocarbons (NMHC), carbon monoxide (CO), particulate matter (PM) and
oxides of nitrogen (NOX) from these engines. The levels of
the NTE standards for these pollutants are determined by applying a
multiplier to the applicable FTP standard. The multiplier varies by
pollutant and certification level, but it is generally either 1.25
times the FTP standard or 1.50 times the FTP standard. See 40 CFR
86.007-11(a)(4). For 2002-2006 model year engines tested under the
pilot program, the applicable NTE limit used to develop the NTE
threshold is 1.25 the FTP standard for that model year.
The FTP standards for 2002 and 2003 model year heavy-duty diesel
engines are contained in 40 CFR 86.099-11, except that those engine
families subject to NTE requirements under the Consent Decrees would
use an NTE threshold based on the FTP levels found in the appropriate
Consent Decree. The standards for 2004 to 2006 model year heavy-duty
diesel engines are contained in 40 CFR 86.004-11. Those for 2007 and
later model years are shown in 40 CFR 86.007-11.
2. Existing In-Use Compliance Margins
We previously established compliance margins for in-use
NOX and PM emissions testing of 2007 to 2010 model year
heavy-duty diesel engines. For NOX, the margin varies by
mileage from 0.10 to 0.20 g/bhp-hr for engines certified to an FEL no
higher than 1.3 g/bhp-hr. For PM, the margin is 0.01 g/bhp-hr. (See 40
CFR 86.007-11(h) for more details.)
3. New Measurement Margins for Portable Measurement Systems.
We are including new ``accuracy margins'' in the calculation of the
emission thresholds for this program. The allowances are primarily
designed to account for any differences between the accuracy of the
portable emission measurement instruments for use on a vehicle and the
accuracy of those available for use in a laboratory. The allowance also
takes into account the different way in which emissions are calculated
in a laboratory versus in the field. Because of the continuing
uncertainty regarding the specific accuracy of development for portable
measurement systems (See section II. L.), we have chosen to adopt an
interim set of accuracy margins at this time. These margins will be
used only in the pilot program. As explained below, we are developing
more precise accuracy margins for use in the subsequent fully
enforceable in-use testing program.
a. Pilot Program Accuracy Margins. During the pilot program years
that precede the fully enforceable program, manufacturers will use
interim margins that we believe represent an upper bound of the
possible instrumentation variability based on our experience with
portable and laboratory measurement systems. The pilot program accuracy
margins are: NMHC, 0.17 grams per brake horsepower-hour (g/bhp-hr); CO,
0.60 g/bhp-hr; NOX, 0.5 g/bhp-hr; and PM, 0.10 g/bhp-hr.
b. Final Program Accuracy Margins. The margins for the fully
enforceable program, i.e., 2007 for gaseous pollutants and 2008 for PM,
are being jointly developed through a comprehensive research,
development, and demonstration program. The cooperative program is
described in a Memorandum of Agreement (MOA) among EPA, CARB, and the
engine manufacturers.\10\ The purpose of the MOA is to specify: (1) A
detailed roadmap for developing data-driven margins based on a sound
engine and vehicle test plans; (2) the respective roles and
responsibilities of each party; (3) the exact statistically-based
algorithms for calculating the data-driven margins; (4) how the final
margins can be incorporated into the in-use testing regulations; and
(5) the consequences of failing to complete the cooperative program in
time to start either the gaseous or PM fully enforceable testing
program as adopted in today's action. See section II. N. of this
preamble for a more complete description of the MOA.
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\10\ See ``Memorandum of Agreement, Program to Develop Emission
Measurement Accuracy Margins for Heavy-Duty In-Use Testing,'' dated
May XX, 2005. A copy of the memorandum is contained in the public
docket for this rule and at the EPA/OTAQ Web site (http://www.epa.gov/otaq/hd-hwy.htm
).
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As described at the beginning of this section, we chose the
additive approach for incorporating the new portable measurement system
accuracy margins into the NTE thresholds. We did this to
[[Page 34604]]
encourage instrument manufacturers to develop more accurate and
repeatable portable measurement instruments in the future. A fixed
allowance creates the same situation that already exists for laboratory
measurement instruments, which encourages more accurate and repeatable
instruments. That is, with no allowance or a fixed allowance, a more
accurate and repeatable instrument will allow engine manufacturers to
allocate a smaller fraction of their compliance margin to instrument
error. We will revisit this issue in the future to determine if the
final margins determined through the comprehensive program discussed
above should be reduced or eliminated based on technical advances in
these devices. To this end, we intend to adjust or phase-out such a
margin through future rulemaking based upon improvements to the
measurement equipment. We intend, however, that no future action to
revise the final margins discussed above would take effect prior to
2010. The adjustment or phase-out would apply to any engine tested
after such a rule became effective.
G. Considerations in Deciding on Remedial Action
In determining whether to pursue some sort of remedial action
following Phase 1 and Phase 2 testing, we will consider supplemental
information obtained separately by us, or submitted by the engine
manufacturer. This information could include emissions data from
additional tests performed with onboard portable emissions measurement
devices, as well as from testing conducted using engine dynamometers or
chassis dynamometers. The information may include an evaluation of,
among other things: The margin by which any exceedence was above the
NTE threshold; the number of engines that showed exceedences; the
frequency and duration of any exceedences as compared with the
aggregate amount of time that all of the test vehicles were operated
within the NTE zone; the emissions of the test vehicles over the entire
test route, including average(s); the projected emissions impact of the
exceedences; and the relationship of the exceedences at issue to the
engine family's ability to comply with the applicable standards or
FELs. We will also consider any other data or factors relevant to
determining whether to pursue some form of remedial action.
H. Quantity of Data Collected
The minimum time for data collection from a test vehicle is one
full shift (work) day of operation, provided that each test vehicle
operates in non-idle modes for at least 3 hours during a typical shift
day. Prior to the commencement of either Phase 1 or Phase 2 in-use
testing, the manufacturer will screen-out from Phase 1 testing any
vehicle that the manufacturer reasonably determines is unlikely to
operate in non-idle modes for at least 3 hours over a full shift.
In the event that a selected test vehicle does not operate in non-
idle modes for at least 3 hours over the full shift day, we are
requiring that the vehicle must be tested over a second full shift day
of operation. Testing shall not be required beyond the second full
shift day even if that second day of testing also fails to yield, in
the aggregate, 3 hours of vehicle operation in non-idle modes. After
the second day of testing, the valid NTE sampling events will be
evaluated according to the previously outlined criteria, even if less
than 3 hours of non-idle data is collected. In the event that no valid
NTE sampling events are recorded from a selected test vehicle, that
vehicle will be deemed to have satisfied the vehicle pass/fail criteria
for the purposes of this in-use testing program. At their option,
manufacturers may conduct in-use testing for a longer duration.
While the minimum data collection requirement described above
applies to both the pilot and fully enforceable programs, an evaluation
of in-use test data prior to 2007 could change the final value for the
data collection period. During the pilot program, we will perform a
statistical analysis, in collaboration with EMA, of the available in-
use testing data, particularly the data generated under the proposed
pilot program described below, to determine the necessary parameters of
the test regime. The end result could be either a longer or a shorter
period of data collection, or other revisions to the in-use NTE testing
program. We will, if appropriate, amend the regulations based on the
outcome of this analysis.
I. Screening, Adjustment, and Mileage of Test Vehicles
To help ensure that testing is conducted on a diverse sample of
``qualified'' vehicles, our proposal identified a number of general
pre-selection criteria for prospective test vehicles within a
designated engine family. First, test vehicles must be obtained from at
least two sources. We envision the most common source of engine will be
fleet operators, but could also include independent operators. As
stated previously, we believe manufacturers will be able to leverage
existing relationships with its customers or use this program as an
opportunity to strengthen those relationships. Second, manufacturers
must screen each selected vehicle for proper use and maintenance and
reject those vehicles which have not been properly maintained and used.
Third, prospective test vehicles must be screened to identify those
that are reasonably likely to operate in non-idle modes for at least 3
hours over the course of a full shift day (see section II. H. of this
preamble for more on the non-idle and shift day requirements). Fourth,
engines or critical vehicle systems that have been tampered with,
rebuilt, or subjected to major repairs that could affect emissions,
will not be used in testing. Fifth, test engines must have their
adjustable parameters set to the specifications contained in the
vehicle/engine maintenance manual (i.e., set to spec). Sixth,
manufacturers must establish appropriate means to ensure that test
vehicles are operated only on diesel fuels meeting the requisite
specifications for the model year in which they were emissions
certified. Seventh, and finally, no prospective test vehicles may be
rejected because of high mileage, except for those whose engines that
exceed their regulatory useful life.
We proposed that each manufacturer submit a general plan describing
how they would identify, locate, and screen vehicle for in-use testing.
The general plan was intended to cover all engine families selected for
testing by EPA. The plan was to indicate whether the procurement and
screening method may result in an emphasis on testing engines from a
particular type of driving route or from a particular geographic area.
The plan needed to identify the business relationships, such as with
vehicle manufacturers or fleet operators, that would be used to recruit
vehicles. The plan was to describe the methods that will be used to
gather available information about whether vehicles and engines meet
the seven general vehicle criteria described above, including any forms
or procedures that will be used. Finally, the plan would cover
situations not specifically addressed by the above seven cases. For
example, how the presence of an onboard diagnostic (OBD) system trouble
code or an illuminated malfunction indicator lamp (MIL) would be
treated in the test program. Deviations from the general plan would
need to be submitted to EPA for evaluation.
The engine manufacturers commented adversely on the mandatory
nature of the general plan. They stated that the general plan
requirements would unacceptably increase the burden of the overall test
program by adding multiple
[[Page 34605]]
layers of costs, delays, and complexities. Further, they claimed that
the requirement is not consistent with the ``screening'' nature of the
Phase 1 testing as described in the settlement agreement. Manufacturers
suggested that a more reasonable approach for dealing with this issue,
as described in the preamble for the proposal, is for EPA and the
engine manufacturers to work together to develop appropriately detailed
guidance documents relating to recruitment, screening, and preparation
of vehicles for testing. They also commented that if the general plan
requirements were retained, EPA should specify its review time for plan
approval.
We agree that it will likely be more efficient to obtain the
information contained in the general plan through guidance rather than
specific requirements in the regulations. We are currently developing
the guidance with help from CARB and the engine manufacturers. The
proposed general plan criteria, as well as other items, are included in
the guidance. It also includes a template for manufacturers to submit
the information suggested in the general plan. The manufacturers will
not be required by the guidance to provide a general plan but if they
do so, we would expect the criteria in the guidance to be followed.
We continue to feel that the information contained in the
voluntarily submitted general plan will be valuable to us in proving a
greater understanding of how the manufacturers conduct their testing
programs and an increased confidence in the test results. Without this
information, we will feel compelled to perform an increased level of
our own in-use testing to validate the manufacturer's test results. We
have reduced the potential burden associated with the voluntary
submittal by making the plan sufficiently general to cover multiple
engine families. We now envision an annual or maybe even a one-time
submission of the general plan with manufacturers only highlighting
deviations from the plan for a given engine family. The aforementioned
template will accommodate a discussion of any deviations.
In response to comments, we have also identified protocols
regarding the use of appropriate diesel fuels or biodiesel fuel blends
in test vehicles and addressing vehicles with onboard diagnostic system
(OBD) trouble codes or illuminated malfunction indicator lamps (MIL).
For test fuels, we proposed that manufacturers must establish
appropriate means to ensure that test vehicles are operated only on
diesel fuels meeting the requisite specifications for the model year in
which they were emissions certified. Engine manufacturers commented
that EPA should provide a mechanism or approach to ensure no vehicle
failures were due to bad fuel. Specifically, they requested that a real
pre-testing method of ensuring that a vehicle has been operated only on
proper diesel fuels must be developed and integrated into the in-use
testing program to avoid improper and wasteful testing. The
manufacturers also commented that the proposed provision would require
testing to be performed using fuel meeting the specifications for
certification fuel. Requirements to find and ensure the use of such
fuel will be overly burdensome. Finally, they recommended that the test
fuel provision be modified to specify that diesel fuel consistent with
the engine manufacturer's recommendations be used for testing. This was
a special concern related to the use of certain biodiesel fuel blends.
From the comments it is clear that engine manufacturers and EPA
share the same goals regarding the use of test fuels that are
appropriate for in-use testing, e.g., they are representative of
commercially available in-use fuels and a reasonable method be
identified to avoid wasteful testing on inappropriate fuels. After
further discussions with CARB and engine manufacturers on this issue,
we are adopting the following approach.
A prospective test vehicle's fuel tank(s) may be drained and
refilled with fuel conforming to the ASTM D975 specifications prior to
conducting any test. Manufacturers may not provide special fuel for in-
use emissions testing. If fuel is needed before initiating or during an
in-use test, it must be procured from a local retail establishment near
the site of vehicle procurement or screening, or along the test route.
Alternatively, the fuel may be drawn from a central fueling source
provided that the fuel used is representative of that which is
commercially available in the area where the vehicle is operated. If
the manufacturer can document that owner/operator of the prospective
test vehicle has an established pattern of using one or more specific
fuel additives and the fuel treatment is not prohibited in the
vehicle's owner or operator manual, the manufacturer may continue to
add that same fuel treatment for in-use testing. Also, the engine
manufacturer may take pre-test and post-test fuel samples from
recruited vehicles to ensure that appropriate fuel was used during in-
use emissions testing. All fuel test results must be reported to EPA.
Engine manufacturers have indicated a special concern with the use
of biodiesel fuel blends in prospective test vehicles. We want to make
it clear that the past use of biodiesel fuels is not grounds for
automatically rejecting the vehicle from the test program. Biodiesel-
fueled vehicles are acceptable if they use any biodiesel fuel blend
(e.g., biodiesel blends not in excess of B5) that is either expressly
allowed or not otherwise indicated as an unacceptable fuel in the
vehicle's owner or operator manual. A vehicle recruited into the
program with a biodiesel fuel blend that is either expressly allowed or
not otherwise indicated as an unacceptable fuel in the vehicle's owner
or operator manual, may not be rejected from testing. Of course,
vehicles using biodiesel fuel blends may have their fuel tank(s)
drained and refilled with ASTM D975 compliant fuel or an acceptable
biodiesel fuel prior to testing. The use of fuel additives is also
allowed as described above.
Finally, if a test vehicle fails the vehicle pass criteria and the
manufacturer can prove that a non-compliant ASTM diesel fuel or
prohibited biodiesel fuel blend was used at any time during the in-use
emissions test, that particular test may be voided. In this case, the
vehicle will be treated as described above.
Turning to the OBD trouble codes and MILs, we proposed to prohibit
manufacturers, as a general rule, from excluding vehicles from in-use
testing if the vehicle had an OBD trouble code or MIL illuminated.
Further, we proposed that manufacturers could not, as a general matter,
remedy the cause of the trouble code or MIL illumination prior to or
during in-use testing. However, the existence of these codes or lights
during the screening process may indicate that the vehicle has been
poorly maintained, tampered with, or improperly fueled. In these cases
the manufacturer could request that the vehicle be rejected from the
program. If a trouble code is set or malfunction light was displayed
after the vehicle has been accepted into the program, this also would
not be automatic grounds for eliminating a vehicle or aborting a test
once it has begun. Here the manufacturer could either test the vehicle
with the code or ask for approval to remedy the cause of the code if it
is maintenance related. We provided a number of examples illustrating
specific occurrences of OBD codes or MILs and the likely disposition of
those vehicles relative to the testing requirements.
[[Page 34606]]
The engine manufacturers commented that testing with MILs or codes
represents abnormal operation because owners of heavy-duty vehicles
attend to these problems promptly in order to protect their business
operations. Hence, they argued, that it does not make sense to require
testing of vehicles with these conditions unremedied and it is
inconsistent with the settlement document that calls for testing
vehicles during their ``normal operations.'' The manufacturers also
stated that there is no comprehensive OBD program aimed at flagging
emission exceedences or specific flaws in an engine's emission control
system. Therefore, they believed it is unfair to presume that an
activated MIL or trouble code necessarily would signify an emissions-
related issue. Finally, manufacturers claimed that having to ask EPA
for permission to reject or repair a vehicle would cause delays in
conducting the program and be unnecessarily expensive.
Although there is currently no federal OBD requirement for heavy-
duty diesel engines, EPA is in the early stages of developing such a
requirement. The heavy-duty in-use testing program needs to be designed
to accommodate the expected future OBD regulations. Further,
manufacturers currently use diagnostic routines systems to varying
degrees to assist service technicians in the repair of today's engines.
To the extent those diagnostic routines identify potential problems
with the emissions control system, it is appropriate for that
information to be considered in the in-use test program, even if the
OBD system is not designed to flag emission exceedences. At a minimum,
even today's OBD systems can potentially identify flaws in an engine's
emission control system that could cause an emissions exceedence. We
continue to believe that OBD information can potentially be valuable in
identifying potential in-use emissions exceedences and understanding
their cause.
As in the proposal, EPA will require manufacturers to supply known
OBD information both with regard to the history of the vehicles and
their performance once accepted in to the manufacturer-run in-use
testing program. This information is important in that it may indicate
emissions-related problems relevant to whether the engines have been
properly designed to meet emission standards for the useful life of the
engine and whether the engines are in fact meeting such standards
during the useful life of the engine.
However, EPA agrees with the comment that owners of heavy-duty
vehicles are instructed and are likely to attend to OBD related
problems promptly. Therefore, manufacturers will not be required to
test vehicles with a MIL illuminated or a trouble code set. We believe
it is more appropriate to review emissions-related concerns identified
by the OBD system without requiring manufacturers to use such vehicles
in the in-use testing program, and the information that we receive from
manufacturers will aid in this review. At their discretion, a
manufacturer may generally test the vehicle with the MIL illuminated or
trouble code stored, repair the vehicle and then test it (without EPA
approval), or reject the vehicle from the test program as follows:
1. If a vehicle is received into the program and the length of MIL
illumination or trouble code storage is consistent with proper
maintenance and use, then the vehicle must be tested as received or
repaired prior to testing. If the vehicle is repaired, the manufacturer
must report the repair and the associated MIL illumination or trouble
code to EPA;
2. If the vehicle is received into the program and the length of
MIL illumination or trouble code storage is inconsistent with proper
maintenance and use, the manufacturer has three options. First, test
the vehicle as received. Second, repair the vehicle prior to testing
and report the repair and associated MIL illumination or trouble code
to EPA. Third, reject the vehicle from the test program and replace it
with another vehicle. The manufacturer must report the repaired or
rejected vehicle and its associated MIL illumination or trouble code to
EPA; and
3. If a MIL goes on or a trouble code is set during an in-use test,
the manufacturer has two options. First, stop the test, repair the
vehicle, and re-start the testing. In this case, only the portion of
the full test results without the MIL illuminated or trouble code set
would be used in the vehicle pass determination. Second, stop the test,
repair the vehicle, and initiate a new test. In this case, only the
post-repair test results would be used in the vehicle pass
determination. Again, any repair, and the associated MIL illumination
or trouble code must still be reported to EPA.
We intend to have developed a guidance that addresses a number of
issues pertaining to vehicle recruitment, screening, maintenance, and
testing. The document will also provide guidance in identifying the
activity thresholds for OBD trouble codes and MIL illumination referred
to above.
We also received several additional comments related to vehicle
acceptance, vehicle selection, screening, and maintenance. First, we
proposed to require that a manufacturer notify us prior to rejecting a
prospective vehicle from the program for reasons other than failing to
meet acceptance criteria contained in the general plan. The engine
manufacturers commented that they should not be required to notify EPA
that a candidate vehicle has been rejected if the owner decides not to
make the vehicle available for testing. We agree that our proposal to
require advanced notification in this instance could be burdensome. We
have amended the regulations to clarify that no notification is
required prior to rejecting a vehicle if the owner refuses to
participate in the program. We have also clarified the regulations to
require that a manufacturer must document and report the rejection to
EPA as part of their normal reporting requirements under the program.
The second comment relates to making sure that the engines in the
selected test vehicles are dissimilar. We proposed two basic different
types of requirements to help ensure that the vehicles selected for
testing within an engine family displayed variations in operating
regimes and other usage characteristics. First, manufacturers were to
recruit test vehicles from at least two different sources. Second,
manufacturers were to submit a general test plan that was designed, in
part, to identify if there was any bias, i.e., pre-selection, in a
manufacturer's recruiting program.
The Pennsylvania Department of Environmental Protection (PDEP)
asked how we would ensure that a varying sample of engines within an
engine family were tested. Specifically, they hypothesized that one
fleet may have 10 vehicles with the same engine family, and that the
engines may all have been produced on the same day under the same
conditions. Further, PDEP suggested that it may be tempting for an
engine manufacturer to test all these very similar engines. Therefore,
they wondered if EPA had a strategy to ensure that test engines were
produced at different times and for different fleets.
The concern expressed by PDEP is unlikely to be encountered since
manufacturers are required to select vehicles from at least two
different sources and submit to EPA detailed information on the
vehicles they select. Further, even though the general plan is now a
voluntary submission, we expect that manufacturers will normally
provide this information. This will help ensure the manufacturer test
programs
[[Page 34607]]
are reasonably diverse in test vehicles and conditions. Finally, EPA
has the authority to conduct its own in-use testing if it has concerns
with the representativeness of the manufacturers' test results.
The third comment regards setting adjustable parameters. We
proposed that a manufacturer must set any adjustable parameter to the
midpoint of its adjustable range prior to testing. Engine manufacturers
asked that the requirement be expanded to allow an adjustment to the
manufacturer's recommended setting. We agree with the comment and now
allow an adjustable parameter to be adjusted to the manufacturer's
recommended setting or the midpoint of its adjustable range prior to
testing.
A fourth comment questions whether engine operating controls might
be illegally recalibrated prior to testing. We proposed that engine
manufacturers conduct a thorough screening of each engine before making
any allowable adjustment or maintenance prior to testing. The results
of this screening were to be reported to EPA. Also, manufacturers were
required to screen each selected vehicle for proper use and maintenance
and reject those vehicles which have not been properly maintained and
used.
The PDEP commented that the process of implementing supplemental
test procedures, e.g., the NTE, was developed because engine
manufacturers programmed their engines to recognize when they were
being tested by the federal test procedure and when they were traveling
on the highway. They asked if we had contingencies to stop engine
manufacturers from re-flashing the vehicle's electronic control module
in order to pass the screening process.
Obviously, a manufacturer that ``reflashed'' a vehicle's electronic
control module during the screening process would not be generating a
representative sample of emission results which is required when
deciding whether an engine family is complying with the emissions
standards. Further, that manufacturer could be modifying the emissions
control system such that the engine is no longer covered by a
certificate of conformity. In that situation, an engine could be in
violation of Section 203 of the Clean Air Act and subject to civil
penalties. We have the authority to void the certificate of conformity
for an engine family if the engine manufacturer did not meet its
obligation under the in-use testing rules. We also require
manufacturers to report any steps they take to maintain, adjust,
modify, or repair the vehicle or its engine prior to testing.
Falsifying the emissions performance of an engine could constitute
ground for voiding a certificate. A void certificate also results in a
violation of Section 203 of the Clean Air Act and possible civil
penalties because any sold engines are no longer covered by a
certificate of conformity.
Finally, we do not anticipate manufacturers resorting to such
practices and expect to physically participate in the manufacturer
testing programs to some extent, including during vehicle screening and
maintenance prior to testing. Finally, EPA will continue to conduct
some level of its own in-use testing to validate the manufacturer's
test results and gain confidence in their test programs.
J. Test Conditions
For all Phase 1 testing, we are requiring that test vehicles must
to be operated over normal driving routes, carrying routine loads
during normal atmospheric/environmental conditions, with the vehicle's
normal owner/operator doing the driving. Our intent is to record the
emissions from the test vehicles as they are used and operated on a
normal day-to-day basis.
For Phase 2 testing, we may direct engine manufacturers to use a
generic or specific test route and other conditions that replicate
those observed in the Phase 1 testing that indicated a potential
nonconformity. These other conditions may include but not be limited to
specifying the State and/or contiguous States in which testing must be
performed, or specifying the time period (of no less than 3 months in
duration during which the testing must be performed. (This latter
condition may also be used to ensure prompt testing of Phase 2 vehicles
or to ensure testing during periods of particular atmospheric
conditions.) In deciding to make these elections, we will take into
account lead time and vehicle availability constraints.
We requested comment on whether EPA should similarly be allowed to
direct a manufacturer to test specific engine configurations, test
routes, and driving conditions for Phase 1 testing when we have
particular information suggesting that these stipulations may help
focus testing on areas where EPA has particular emission-related
concerns. We believed that such an initial focus might not only improve
the overall effectiveness of the in-use program, but might reduce the
number of tests a manufacturer may otherwise need to conduct if Phase 2
testing is conducted for any reason.
Engine manufacturers commented that Phase 1 testing is meant to
quickly screen vehicles for NTE compliance. Further, the manufacturers
argued that specifying detailed test conditions for Phase 1 adds
unacceptable complexities, time constraints, costs, and vehicle
recruitment difficulties, and should not be adopted. After reviewing
the engine manufacturers objections, we are not adopting a ``directed''
testing allowance in Phase 1.
K. Reporting Requirements
1. Comprehensive In-Use Testing Reports
Engine manufacturers will report test data and other relevant
information to EPA on a regular basis. Specifically, manufacturers must
send us reports for all engines tested during a calendar year quarter
no later than 30 days after the quarter ends. Alternatively,
manufacturers may send us a report for individual engines within 30
days after testing is completed.
These reports will be comprehensive in scope. Manufacturers must
detail all emissions data, engine operating parameters, test
conditions, test equipment specifications, vehicle and engine
information generated during the manufacturer test program (e.g.,
information on vehicle maintenance and usage history with reasons for
rejected vehicles, restorative maintenance performed prior to testing),
vehicle pass results, etc. Engine operating parameters include all
information that is electronically sensed, measured, calculated, or
otherwise stored by the engine's onboard computer. This must include,
but is not limited to, engine speed, engine torque or brake specific
fuel consumption, engine coolant temperature, intake manifold
temperature, intake manifold pressure, and any parameter sensed or
controlled in order to modulate the emissions control system.
Manufacturers must also report any parameters used to modulate the
emissions control system so that we can readily identify operation
where an approved deficiency or carve-out applies, and the state of the
engine during that operation.
Engine manufacturers will follow a standardized, electronic
reporting format. We are currently developing the exact content and
form of the reports with CARB and the engine manufacturers.
Participation by CARB ensured that the reporting requirements are
nationally consistent when it establishes an in-use NTE testing program
of its own. The reporting requirements are detailed in the regulatory
text accompanying today's
[[Page 34608]]
proposed rule. Additional details, including the final reporting
format, will be published separately by EPA as a guidance document.
Engine manufacturers commented that our list of proposed data
requirements was too extensive and overly burdensome. However, they
acknowledged that the negotiated outline specifies the submission of a
``* * * comprehensive report * * *.'' The manufacturers also stated
that the negotiated agreement called for a standardized reporting
format to be jointly developed by EPA/CARB and the engine
manufacturers. They noted that the proposed reporting format was not
developed in the prescribed manner. Finally, they commented that until
a jointly developed format has been completed, no final rule should be
promulgated.
As noted above, we are developing the reporting format with the
assistance of the engine manufacturers. We have entirely eliminated
some of the items that we proposed manufacturers report based on their
comments. These items have generally been moved to the record keeping
requirements.
The engine manufacturers also commented that it may be more
appropriate for manufacturers to submit reports upon the completion of
Phase 1 or Phase 2 testing for a specific engine family instead of
submitting reports on a calendar year basis for all engines tested
during that quarter. They argued that this would consolidate
information from a single phase of testing into a single report and
would avoid the illogical inclusion of dissociated information from
multiple families into the same report. Further, the manufacturers felt
this would also ensure more timely reporting of information on
completion of a phase of testing. Accordingly, they asked for the
option of reporting either on a quarterly basis, as specified in the
proposal, or 30 days after the completion of a specific phase of
testing is concluded.
We envision that manufacturers will conduct engine family
evaluations concurrently and that reporting in-use testing results on a
calendar basis will provide the most timely and effective status
updates of those testing programs. We also expect manufacturer testing
to be continuous over multiple calendar quarters. A number of
individual vehicles will likely be tested over that span of calendar
quarters before a given phase of testing is complete. Waiting until the
end of a phase of may not provide EPA sufficient opportunity to follow
the progress of ongoing test programs. Our database will be designed to
accept test results as they become available and update the database
records in a logical manner for easy reading.
As mentioned previously, we are allowing 18 months for the in-use
testing of any engine family be completed and fully reported to provide
manufacturers with adequate lead time to properly planning and
conducting the in-use test program. A manufacturer may request up to
six addition months to complete and report Phase 2 test results if
there is a reasonable basis for needing more time. Further, a
manufacturer may request an additional six month extension. A
successful request for this added extension will be limited to
extraordinary circumstances beyond the control of the manufacturer and
its customers whose vehicles are being tested. The testing and
reporting period begins from the date EPA officially notifies the
manufacturer that an engine family has been designated for in-use
testing.
Engine manufacturers commented that they were dissatisfied with
both the requirement to complete all testing of a designated engine
family within 18 months, and the option to request a six-month
extension for Phase 2 testing if justifiable. They concluded that it
may be impossible to meet these deadlines in some cases, although no
specific examples were provided. Instead, they asked that the provision
be deleted or modified to allow unlimited extensions where
circumstances dictate.
We believe that allowing unlimited extensions seems unnecessary and
could result in engine families exhausting their useful lives before
meaningful compliance data is generated. We also think that 18 months
is sufficient to complete testing under normal circumstances.
Manufacturers agreed to this in the settlement document, which states
that data from the testing of a designated heavy-duty on-highway diesel
engine family will be completed and reported to EPA and CARB within 18
months from of the designation of that family by EPA/CARB. In the
proposal, we went even further and acknowledged there may be situations
where an additional 6 months could be warranted due to unforseen and
infrequent events. Therefore, we adopted the test and reporting period
as proposed.
Nonetheless, we acknowledge that there might be some instances when
unforseen complications may arise. In order to ensure the test program
is successfully initiated with minimum burden to manufacturers, we will
remain open to a request from any manufacturer for additional time
beyond the 6 month extension. A successful request for this added
extension will be limited to extraordinary circumstances beyond the
control of the manufacturer and its customers whose vehicles are being
tested. The threshold for such consideration is intended to be
extremely high, and the frequency of such manufacturer requests, much
less EPA approval, extremely low. In no instance, would the second
deadline extension exceed 6 months. Finally, to the extent that any
such additional extensions are needed, we would expect these to become
non-existent as manufacturers gain experience with the in-use test
program.
We are also adopting our proposal that allows us to obtain more
information from the manufacturer than is specified in the reporting
requirements if it is needed to evaluate whether an engine family meets
the in-use testing requirements. Engine manufacturers commented that
this allowance was an open-ended requirement that was unreasonable and
unacceptable.
The allowance for us to request additional information is a general
requirement common to all of EPA's regulations. There is nothing unique
about the heavy-duty in-use test program that would diminish the
important of this requirement. Therefore, we have retained it in the
final rule.
2. Notification of Individual Vehicle Failures
We are requiring that manufacturers must ``quickly'' notify us when
certain individual vehicles fail the vehicle pass criteria. The
accelerated reporting period for failing vehicles is designed to afford
EPA the opportunity to participate in the diagnosis of vehicle failures
and any resulting follow-up activities. Specifically, we are requiring
such notifications at two different points in the testing scheme. The
first is when an engine family has experienced three failures in Phase
1 testing. This is the point where a manufacturer is fully committed to
testing a total of 10 vehicles. Further, this is the threshold where,
at the conclusion of Phase 1 testing, a manufacturer must join EPA in
follow-up discussions to determine whether or not any further testing
(i.e., Phase 2), investigations, data submissions, or other actions may
be warranted. We require that a manufacturer notify us by email within
15 days when the initial review of the test data for a selected engine
family indicates that a third failure in Phase 1 testing has occurred.
[[Page 34609]]
The second point is each time a vehicle failure occurs during Phase
2 testing. In this case, we require a more immediate notification
because of the increased significance of such failures. These failures
are significant because of the greater likelihood of a possible
nonconformance and the possibility that testing needs to be focused on
specific vehicle configurations, environmental conditions, etc. In this
phase of the program, we will require that a manufacturer notify us by
email within 3 days when the initial review of the test data for a
selected engine family indicates that a vehicle failure has occurred in
Phase 2 testing.
In the proposal, we specified a more comprehensive scheme for
rapidly reporting vehicle failures. Each individual vehicle failure
needed to be reported to us within 15 days of conducting the emissions
test. The report was comprehensive in nature. It included detailed
emissions and engine data from the test in addition to any diagnostic
results and conclusions. The manufacturers opposed the requirement,
stating that the provision was unduly burdensome and unnecessary.
We continue to find that accelerated reporting of vehicle failures
provides us with an important opportunity to participate in the
diagnosis of failing vehicles and any resulting follow-up activities.
This is no different than the opportunity we provide manufacturers in
our own test programs. In light of the comment, however, we have
reconsidered how our objective can be achieved while minimizing any
associated reporting burden. As a result, we eliminated the
comprehensive nature of the reporting requirement and made the
requirement a simple notification when a potential failure has been
observed. We also reduced the frequency of such notifications to the
two points in the testing scheme as described above. These two points
in the testing scheme were selected because that is where failures
clearly become of sufficient interest to us that we may want to have
the opportunity to participate in the test program.
3. Carve Outs, Deficiencies, or Other NTE Control Area Exclusions
Depending on the applicable standards, several provisions in the
existing heavy-duty diesel engine regulations allow a manufacturer to
temporarily exceed the NTE standards under certain limited
circumstances, or otherwise exclude defined regions of the NTE engine
control zone from NTE compliance. (See 65 FR 59912 and 59914 (October
6, 2000), and 66 FR 5040 (January 18, 2001)). These exceptions are also
allowed in determining if a vehicle passes the vehicle pass criteria as
described in section II. E. All such exclusions and associated test
data must be fully described and submitted to us as part of the
manufacturer's quarterly or 30-day emissions test result report that is
required under the terms of the program.
More specifically, we are requiring that a manufacturer's report
for each engine tested must describe the parameters that activate and
de-activate each NTE deficiency as well as the engine load and speed
points used to define an NTE carve-out tested under the program. This
information must generally be in a form that can easily be used to
determine whether a particular deficiency or carve-out was encountered
when evaluating 1 Hz NTE test results. The information must be in a
form that can be either loaded directly in EPA's electronic database or
readily converted by us into the required data input structure.
For each NTE deficiency, the manufacturer must provide every engine
and operational parameter(s) used to activate and deactivate the
deficiency as well as the associated activation and deactivation
thresholds. If more than one parameter is used to activate or
deactivate a deficiency, the manufacturer must supply the logic that
defines how those parameters interact. For any approved carve-out,
manufacturers must provide the equation or equations that define the
carve-out region as a function of engine load and speed. The engine
computer must broadcast at 1 Hz, each parameter used to activate or
deactivate a deficiency. EPA, CARB, and the engine manufacturers will
jointly develop a template for submitting the information to EPA and
CARB. This template will be included in a guidance document on this
subject.
We requested comment on whether manufacturers should be required to
electronically identify when the engine is operating in the area of an
approved carve-out or deficiency and report that information as a data
output to the portable emissions measurement systems. Flagging the
presence of a carve-out or deficiency in such a manner appeared
feasible as a relatively minor revision to the engine's on-board
computer software. We envisioned the software changes would be limited
to manipulating already broadcast or stored parameters. Electronic
reporting of this information would ease the data analysis for the
engines tested in the manufacturer-run, in-use testing program, and
allow ready access to the same type of information for engines that may
be tested in our own program using portable emission measurement
systems.
Manufacturers commented that the requirement was too costly and
time intensive. They stated that valuable electronic control module
(ECM) processing capacity would be used just to provide an ``easy''
electronic indicator for NTE operation. Manufacturers provided no data
or other information to support their claim that the requirement was
``too costly and time intensive.'' Upon further consideration, we
recognize requiring manufacturers to add the electronic capability to
flag NTE deficiencies and carve-outs as part of this rulemaking might
present an unreasonable burden from the perspective of lead-time for
the 2007 model year, which is less then two calender years away. We
continue to believe that electronically reporting NTE deficiency and 5
percent limited testing region flags on a real time basis is necessary
to improve the efficiency of collecting and analyzing in-use test data.
EPA believes that the 2010 time frame would provide adequate time for
manufacturers to begin implementing such an ECM-based reporting
requirement. We intend to pursue this in a future rulemaking regarding
onboard diagnostic systems for heavy-duty vehicles.
Regarding the availability of such information for use in our own
in-use testing program, we can always request such information from a
manufacturer in lieu of receiving it as part of the ECM read out.
However, we want to ensure that these requests receive special handling
to expedite our testing. We are, therefore, requiring that
manufacturers provide engine information which clearly identifies the
parameters defining all NTE deficiencies and parameters defining all
NTE carve-outs for an engine family and associated power level when
requested. Further, that the deficiencies and carve outs must be
reported in sufficient detail for us to determine if a particular
deficiency or carve-out will be encountered in the emission test data
from the portable emission-sampling equipment and field-testing
procedures. Such information is to be provided within 60 days of the
request from EPA.
4. Incomplete, Invalid, or Voluntary Tests
We proposed that engine manufacturers must report all results from
emissions testing, including incomplete tests, invalid tests, and
additional tests that are voluntarily conducted.
[[Page 34610]]
The engine manufacturers objected to reporting results from the
types of tests described above. They stated that such a requirement is
overly burdensome and intrudes on a manufacturer's right to conduct
voluntary tests without EPA ``supervision.'' Further, the manufacturers
also specifically objected to reporting results when Phase 2 testing
was voluntarily undertaken.
We continue to believe that the results of incomplete and invalid
tests can yield valuable information regarding NTE emissions compliance
and that it is legitimate to have access to this information within the
context of the in-use program. However, to keep the reporting burden to
a minimum, we will only require manufacturers to notify us in their
formal reports when such tests were conducted for a selected engine
family. Further, manufacturers will simply be required to keep all
related test data and other relevant information as part of their
recordkeeping in case we ask for it.
We disagree with the engine manufacturers suggestion that the
results of testing should not be reported to EPA when a manufacturer
voluntarily undertakes Phase 2 testing. In this instance, a
manufacturer would be conducting the testing as a consequence of the
Phase 1 test results. This follow-on testing is clearly a logical next
step in the manufacturer-run, in-use testing program, and the results
of such testing must be properly reported to EPA.
Regarding other voluntary tests that a manufacturer may conduct
outside of the manufacturer-run, in-use testing program, we find that
it is important for us to be aware when a manufacturer conducts such
testing. Beyond providing valuable information, we want to prevent a
situation where voluntary testing might be interpreted as having been
conducted to screen test vehicles for passing results, which might then
be submitted to us as valid tests under the in-use program. We do agree
with the manufacturers, however, to the extend that our proposal could
be interpreted as too broad and overly burdensome.
To accommodate these legitimate concerns, we have refined our
requirements in this area as follows. First, we will limit this
requirement to voluntary tests conducted on the same engine families
that are being tested under the in-use test program. Second, we will
focus the requirement on the period between the time the family is
first selected for testing, until the final results of all testing for
that family are reported to us. Third, as described above for invalid
and incomplete tests, we will only require manufacturers to notify us
in their formal reports when such tests were conducted for a selected
engine family. The notification must clearly describe the purpose of
the voluntary testing and how it is unrelated to the vehicle
recruitment, screening, and testing conducted under the manufacturer-
run, in-use testing program. Fourth, and finally, manufacturers will
simply be required to keep all test data and other relevant information
as part of their recordkeeping in case we ask to review it.
L. Measurement of Emissions
We are adopting the test procedures in 40 CFR part 1065 subpart J,
``Field Testing'' for conducting any emissions testing required in this
program, as well as any other onboard testing required for heavy-duty
engines under part 86, subpart N. These revised requirements are being
promulgated as a companion rule to today's final manufacturer-run, in-
use testing rulemaking.
We proposed to adopt the test procedures in part 1065, subpart J,
``Field Testing'' for conducting any emissions testing required in the
in-use testing program, as well as any other onboard testing required
for heavy-duty engines under part 86, subpart N. In our proposal, we
noted that changes were being made to the then current version of part
1065, and that those revisions were being published in a separate
companion Notice of Proposed Rulemaking (NPRM). The relevant proposed
test procedures were generally described, and we asked that comments on
the companion NPRM be directed toward that notice.
Manufacturers commented that the comment period on the in-use
testing program be extended to align it with that of the companion test
procedure proposal. They argued that the field testing provision had
not yet been published and that this made it impossible to comment in
total on the proposed in-use testing program. We chose not to extend
the formal comment period for this rule, but have continued to exchange
information with affected companies over an extended period up to the
conclusion of the final rule. Manufacturers were able to provide any
comments regarding the interaction of the regulations for this rule and
the rule revising part 1065 during the comment period for that rule.
There were no comments on that rule that would