In-Use Testing for Heavy-Duty Diesel Engines and Vehicles; Emission Measurement Accuracy Margins for Portable Emission Measurement Systems and Program Revisions, 13441-13452 [E8-4388]
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[FR Doc. E8–4829 Filed 3–12–08; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 86
[EPA–HQ–OAR–2004–0072; FRL–8539–3]
RIN 2060–A–069
In-Use Testing for Heavy-Duty Diesel
Engines and Vehicles; Emission
Measurement Accuracy Margins for
Portable Emission Measurement
Systems and Program Revisions
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
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AGENCY:
SUMMARY: In a rule published on June
14, 2005, EPA established a
manufacturer-run, in-use testing
program for heavy-duty diesel vehicles.
The program requires engine
manufacturers to measure exhaust
emissions from their diesel engines
using portable emissions measurement
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systems during real-world operation. At
the time the rule was promulgated, EPA
established interim emission
measurement ‘‘accuracy’’ margins for
the requisite portable emission
measurement devices pending the
development of final accuracy margins
through a comprehensive research
program. This Direct Final Rule adopts
the resulting final accuracy margins for
gaseous pollutants. Also, this rule
makes several changes to the program in
the early years of in-use testing. First,
we are eliminating the first calendar
year, i.e., 2006, of the two-year pilot
program for particulate emissions (PM)
in response to engine manufacturers’
concerns, which primarily relate to the
availability and efficacy of the requisite
portable measurement systems (PEMS)
for that pollutant. Second, due to a
delay in developing the final accuracy
margin for PM under the
aforementioned comprehensive research
program, we are delaying the first year
of the fully enforceable PM test program
from the 2008 calendar year to the 2009
calendar year. During the 2008 calendar
year, there will be another year of pilot
program testing for that pollutant.
Third, and finally, we are extending the
normal period for reporting in-use test
results during the initial years of the
program and allowing certain short-term
changes in how vehicles are recruited
and tested. These revisions are
primarily intended to address delays in
initiating the gaseous emission and PM
pilot programs, manufacuturers’
concerns regarding the schedule for
initial purchases of PM measurement
systems, and manufacturers’ concerns
regarding potential difficulties of
initially instrumenting vehicles with
these units.
DATES: This is effective on May 12, 2008
without further notice, unless EPA
receives adverse comment by April 14,
2008. If EPA receives adverse comment,
we will publish a timely withdrawal of
the Direct Final Rule in the Federal
Register informing the public that the
rule will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2004–0072, by one of the
following methods:
• www.regulations.gov: Follow the
on-line instructions for submitting
comments.
• E-mail: a-and-r-docket@epa.gov.
• Fax: (202) 566–9744.
• Mail: Environmental Protection
Agency, Mail Code: 2822T, 1200
Pennsylvania Ave., NW., Washington,
DC 20460. Please include two copies.
• Hand Delivery: U.S. Environmental
Protection Agency, EPA Headquarters
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Library, EPA West Building, Room:
3334, 1301 Constitution Avenue, NW.,
Washington, DC. Such deliveries are
only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–OAR–2004–
0072. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
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number for the Public Reading Room is
(202) 566–1744, and the telephone
number for the Air Docket is (202) 566–
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FOR FURTHER INFORMATION CONTACT:
Richard Wilcox, Assessment and
Standards Division, Office of
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Traverwood Drive, Ann Arbor, MI
48105; telephone number: (734) 214–
4390; fax number: (734) 214–4939; email address: wilcox.rich@epa.gov.
SUPPLEMENTARY INFORMATION:
NAICS code a
Category
Industry ...........................................................
Industry ...........................................................
a North
this time. For further information about
commenting on this rule, see the
ADDRESSES section of this document.
If EPA receives adverse comment or a
request for public hearing, we will
publish a timely withdrawal in the
Federal Register informing the public
that this direct final rule will not take
effect. We would address all public
comments in any subsequent final rule
based on the proposed rule.
II. Does This Action Apply to Me?
This action will affect companies that
manufacture and certify all-terrain
vehicles for sale in the United States.
Examples of potentially affected entities
336112; 336120
811112; 811198
Engine and Truck Manufacturers.
Independent commercial importers of vehicles and parts.
American Industry Classification System (NAICS).
To determine whether particular
activities may be affected by this action,
you should carefully examine the
regulations. You may direct questions
regarding the applicability of this action
as noted in FOR FURTHER INFORMATION
CONTACT.
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I. Why Is EPA Using a Direct Final
Rule?
EPA is publishing this rule without a
prior proposal because we view this
action as noncontroversial and
anticipate no adverse comment.
However, in the ‘‘Proposed Rules’’
section of today’s Federal Register
publication, we are publishing a
separate document that will serve as the
proposal to adopt the provisions in this
Direct Final Rule if adverse comments
are received on this rule. We will not
institute a second comment period on
this action, however. Any parties
interested in commenting must do so at
III. What Should I Consider as I
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B. Tips for Preparing Your Comments.
When submitting comments, remember
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or section number.
• Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
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• Describe any assumptions and
provide any technical information and/
or data that you used.
• If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
• Provide specific examples to
illustrate your concerns, and suggest
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• Explain your views as clearly as
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• Make sure to submit your
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deadline identified.
IV. Background
The manufacturer-run, in-use testing
program for heavy-duty diesel vehicles
that are used on the highway was
promulgated in June 2005 to monitor
the emissions performance of the
engines used in those vehicles when
operated under a wide range of real
world driving conditions.1 The program
is specifically intended to monitor
compliance with the applicable Not-toExceed (NTE) exhaust emission
standards for non-methane
hydrocarbons (NMHC), carbon
monoxide (CO), oxides of nitrogen
(NOX), and particulate matter (PM). It
requires each manufacturer of heavyduty highway diesel engines to assess
the in-use exhaust emissions from their
engines using onboard, portable
emission measurement systems (PEMS)
during typical operation while on the
road.
1 See ‘‘Control of Emissions of Air Pollution From
New York Motor Vehicles: In-Use Testing for
Heavy-Duty Diesel Engines and Vehicles, 70 FR
34594 (June 14, 2005).’’
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The in-use testing program begins
with a two-year pilot (i.e.,
demonstration) program for gaseous
emissions (i.e., NMHC, CO, and NOX) in
calendar years 2005 and 2006. As
originally adopted, the program also
includes a pilot program for PM
emissions in calendar years 2006 and
2007. The one-year offset acknowledged
that the portable measurement system
technology for PM emissions was
lagging that for measuring gaseous
emissions. The programs are fully
enforceable after their respective pilot
program ends, i.e., the 2007 calendar
year for gaseous emissions and the 2008
calendar year for PM emissions. The
enforceable program applies to 2007 and
later model year diesel engines. Each
manufacturer generally has 18 months
to report all required test results for the
engine families that EPA selects for
testing in any calendar year.
For the purposes of the in-use testing
program, EPA established a vehicle
pass/fail criterion for each pollutant that
compares a vehicle’s measured in-use
emissions to a corresponding numerical
compliance limit, i.e., NTE threshold.
The NTE threshold for each pollutant is
the sum of the NTE standard, any in-use
compliance testing margin that is
already allowed by the regulations, and
a new emission measurement accuracy
margin associated with the use of PEMS.
The PEMS accuracy margin is the
difference between the emission
measurement error for the portable
instrument and the measurement error
for ‘‘laboratory grade’’ instruments that
are used to test vehicles or engines on
a dynamometer in a laboratory setting.
The accuracy allowances are expressed
in the same numerical terms as the
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applicable NTE emission standards, i.e.,
grams of pollutant per brake
horsepower-hour (g/bhp-hr).
When the in-use testing program was
first established in June of 2005, there
was uncertainty regarding what specific
accuracy margins should be used in the
in-use testing program, since the
portable measurement devices that were
expected to be used in the program had
not been rigorously tested at that time.
As a result, we promulgated interim
accuracy allowances for use in the pilot
programs.2 These interim values were
believed to represent an upper bound of
the possible instrumentation variability
based on our experience with portable
and laboratory instruments and test
methods.
In May of 2005, shortly before the inuse test program was promulgated, EPA
entered into a memorandum of
agreement (MOA) with the California
Air Resources Board (CARB) and the
manufacturers of heavy-duty highway
diesel engines (through the Engine
Manufacturers Association (EMA)) to
develop ‘‘data driven’’ emission
measurement allowances through a
comprehensive research, development,
and demonstration program for the fully
enforceable programs, i.e., beginning in
the 2007 calendar year for gaseous
emissions and the 2008 calendar year
for PM.3 The overall test program was
designed to be completed in two phases.
The first phase addressed gaseous
emission accuracy margins and the
second phase addressed PM emission
accuracy margins. The program was to
be managed by EPA, in close
cooperation with CARB and the
involved engine manufacturers.
The MOA also addressed the
consequences of failing to complete the
accuracy margin development work in
time for the scheduled start of either the
gaseous or PM enforceable programs.
Two of these provisions are most
relevant to today’s rule. The first
provision addresses short term delays in
receiving the final accuracy margins.
Specifically, for each month the
accuracy margins are delayed beyond
the agreed upon dates, then affected
gaseous emissions or PM enforceable
program, i.e., either gaseous emissions
or PM, would be delayed by the same
number of months up to three months.
2 The interim additive accuracy margins for the
pilot programs are: NMHC = 0.17 g/bhp-hr, NOX =
0.50 g/bhp-hr, CO = 0.60 g/bhp-hr, and PM = 0.10
g/bhp-hr.
3 See ‘‘Memorandum of Agreement, Program to
Develop Emission Measurement Accuracy Margins
for Heavy-Duty In-Use Testing,’’ dated May 2005. A
copy of the memorandum is available in the public
docket for this rule and at the EPA/OTAQ Web site
(https://www.epa.gov/otaq/hd-hwy.htm).
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The second provision addresses delays
in excess of three months. In particular,
if the accuracy allowances were delayed
beyond three months of the agreed upon
dates, then the affected gaseous or PM
enforceable program would be placed in
abeyance for a year and the respective
pilot program would be extended to
include that year using the interim
allowance(s).
Finally, the MOA acknowledged that
if fundamental, irresolvable technical
problems were identified relative to PM
PEMS, the PM portion of the in-use
testing program would be placed into
abeyance until such time as suitable
devices were identified and available, or
the problems otherwise resolved.
V. Details of the Rule
This Direct Final Rule establishes
new, final gaseous emission
measurement margins that are required
for the manufacturer-run, in-use test
program for heavy-duty diesel vehicles
and engines. This Direct Final Rule also
makes several changes to the in-use test
program in the early years of testing.
First, it places the fully enforceable PM
program, which would have begun in
2008, into abeyance for one year due to
delays in the accuracy margin
development program. In its place, the
pilot program for PM will be extended
into 2008. Second, it grants a request by
EMA and its member companies to
place the 2006 PM pilot program into
abeyance to accommodate their
concerns regarding the availability and
efficacy of PM PEMS. Third, it provides
engine manufacturers with additional
time to conduct in-use testing and
report the results to EPA because of
delays in developing the requisite
electronic reporting guidance,
additional short-term delays in the PM
accuracy margin development program,
and to grant a request from some engine
manufacturers to delay PM PEMS
purchasing decisions until they could
evaluate the initial results of the PM
accuracy margin. That will allow them
to make more refined purchasing
decisions and to have the resulting PM
PEMS include any instrumentation
upgrades that may be forthcoming.
Fourth, it grants a request from engine
manufacturers for the flexibility to
recruit and test separate vehicles for the
2007 and 2008 gaseous emissions and
PM test programs, and to recruit test
vehicles from their internal fleets and
test them while being operated by
company employees for the 2007 PM
pilot program. This addresses the
manufacturers’ concerns that procuring
and instrumenting test vehicles with PM
PEMS could, in some instances, be more
complex and time consuming than for
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gaseous emissions testing. Finally, this
rulemaking removes references in the
applicable regulations to the
development of final accuracy margins
for measuring gaseous emissions with
portable systems because that program
has been completed. Each of these
changes is further described separately
below.
A. Gaseous Emission Measurement
Margins for Manufacturer-Run, In-Use
Testing
1. Results of the Test Program Under the
Memorandum of Agreement (MOA)
The MOA (described in section IV.)
called for development of a
comprehensive test plan for determining
the final emission measurement
accuracy margins for the manufacturerrun, in-use testing program. The test
plan for the gaseous pollutants was
subsequently agreed upon on May 20,
2005.4 Generally, the detailed plan
included a methodology that called for:
(1) Comprehensive engine testing in the
laboratory to assess the agreed upon
sources of possible error and the
resultant measurement variability
between the PEMS and laboratory
instrumentation and measurement
methods; (2) the effects of
environmental conditions on PEMS
error and the variability in key engine
parameters supplied by the engine’s
electronic controls to the PEMS; (3) the
development of a statistically-based
computer model to simulate effects of
all sources of error on the final
measurement accuracy margins; and (4)
validation of the simulation model
results and resulting accuracy margins
against data generated through actual inuse field testing using simultaneous onvehicle measurements from a mobile
emissions laboratory (i.e., laboratorygrade instruments mounted inside a
trailer) and a PEMS unit. This validation
step is important because it provides
confidence that the simulation model
results reflect reasonable measurement
allowances. If the two methods do not
statistically agree, then there may be
possible errors in the simulation model,
the in-use mobile emissions testing
results, or both.
The test plan also contained the
statistically-based algorithms for
calculating the data-driven margins for
4 See ‘‘Test Plan to Determine PEMS
Measurement Allowances for the Gaseous
Emissions Regulated Under the Manufacturer-Run
Heavy-Duty Diesel In-Use Testing Program,’’ for the
U.S. Environmental Protection Agency, California
Air Resources Board, and Engine Manufacturers
Association, dated May 20, 2005. A copy of the
report is available in the public docket for this rule
and at the EPA/OTAQ Web site (https://
www.epa.gov/otaq/hd-hwy.htm).
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the gaseous pollutants in addition to
three different brake-specific calculation
methods for determining emission
results (i.e., grams/bhp-hr) from in-use
data. The first two of these methods
(Methods 1 and 2 below) are described
in 40 CFR 1065.650(a)(1) and (3). The
third method has been suggested by the
engine manufacturers and would
require prior approval of the
Administrator before it could be used as
provided for in 40 CFR
1065.915(d)(5)(iv). The basic calculation
is similar for each of the three methods
and is shown generically in the
following equation:
Brake-Specific Emissions = Mass of
Pollutant/Work Performed
Where:
Mass of Pollutant = Exhaust Pollutant
Concentration × Exhaust Flow Rate
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The three methods differ primarily in
how the exhaust flow rate or the work
portion (i.e., brake horsepower-hours) of
the calculation is determined. The
methods are also more fully described
in the test plan.
After the simulation modeling results
for the three calculation methods were
completed, the test plan called for the
final set of accuracy margins (i.e.,
NMHC, CO, and NOX) to be determined
by the following generalized process.
First, identify the maximum percentage
measurement error associated with any
of the three pollutants, i.e., without
regard to the pollutant species, for each
of the three calculation methods.5
Second, from these three maximum
values, select the method with the
lowest or minimum value. Third, and
finally, use the results from that method
to determine the measurement accuracy
margins for all of the pollutants.
The cooperative test program for
gaseous pollutants as described in the
MOA was completed and a final report
issued.6 7 When the predicted results
from the model simulations were
5 The percentage error for each pollutant and
calculation method was found by dividing the
associated numerical result from the simulation
model by an NTE limit. EPA determined the NTE
limit by multiplying an assumed in-use emission
rate from future heavy-duty diesel engines in the
2010 model year timeframe by the multiplier that
is used to calculate the NTE standard. In this case
the multiplier is 1.5. See 40 CFR 86.007–11(a)(4) for
more information on the NTE multiplier.
6 See ‘‘Gaseous Emission Measurement Accuracy
Margins for Portable Emission Measurement
Systems Used in the Heavy-Duty Diesel Engine InUse Testing Program: Revised Final Report,’’ U.S.
Environmental Protection Agency, February 2008,
EPA report number: EPA420–R–08–005. A copy of
the report is available in the public docket for this
rule and at the EPA/OTAQ Web site (https://
www.epa.gov/otaq/hd-hwy.htm).
7 The estimated cost of the gaseous emission
measurement accuracy margin test program is $2.2
million.
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compared to the mobile emissions
laboratory results, only Method 1 could
be validated for NMHC and NOX.
Methods 2 and 3 could only be
validated for NMHC. None of the
methods validated for CO. While
unexpected, the lack of overall
validation for the three methods is not
necessarily surprising given the
enormous amount of laboratory-based
and on-vehicle testing, the number of
possible errors and the model
simulations (i.e., thousands of
simulation runs), and complexity of the
overall cooperative test program.
The emission test data, simulation
model, and in-use validation data were
investigated further to determine if there
were any errors that could be remedied
to resolve the validation problems.
While this investigation identified some
reasons for the lack of validation and
potential additional work that might
lead to fully validated results, none of
additional work was judged to be
possible under the schedule for
determining the final set of gaseous
emission accuracy allowances as
required by the MOA.
In order to ensure that the fully
enforceable program for gaseous
emissions started on schedule and to
provide an orderly transition for engines
designed and produced during the early
years of the program, the emission
measurement accuracy margins from
Method 1 were chosen for use in the
fully enforceable program for 2007
through 2009 model year engine
families regardless of the calendar year
in which they may be selected for
testing.8 Therefore, the accuracy
margins based on the completed test
program only apply to the emission
results calculated using Method 1 for
these initial three model years.9 The
resultant emission measurement
accuracy margins are: 0.02 for NMHC;
0.5 for CO; and 0.45 for NOX.
At the time Method 1 was selected, it
was anticipated that EPA would
continue to develop validated results for
the remaining methods, although it was
unknown how long that work might
take. It was also anticipated that if the
work was successful, new accuracy
margins could be established through
rulemaking, although the above
accuracy margins for Method 1 would
be retained for 2007 through 2009
8 Method
1 was chosen because it was the only
method that was validated for the two most
environmentally important pollutants from heavyduty diesel truck engines, i.e., NMHC and NOX.
9 The test program results led to no accuracy
allowances for either of the other two calculation
methods from 2007 through 2009 model year engine
families.
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model year engine families, as described
above.
2. Results of Additional Gaseous
Measurement Margin Analysis
At the end of the cooperative test
program that eventually led to using the
accuracy margins for Method 1 testing
for 2007 through 2009 model year
engine families, EPA expressed its
intent to continue work to develop more
robust gaseous emission measurement
accuracy margins, especially for NOX, as
originally anticipated in the test
program plan. We envisioned this work
would primarily focus on the reasons
for the lack of validation and potential
additional work that was identified at
the end of the original test program, as
previously discussed.
In our follow-on work we corrected an
error in the previous test data, included
additional valid engine test data that
was not used in the original work, and
eliminated or corrected some error
biases or data outliers in the data set
based on engineering judgment. A total
of four different modified data sets or
scenarios were constructed for
combinations of the changes described
above for each of the three calculation
methods.10 After rerunning the
simulation model for the various
combinations, we found that each of the
four modifications validated for all three
methods and all the gaseous pollutants.
Furthermore, we found that the results
from the various methods for each
pollutant were numerically quite close
to each other.
In order to select final accuracy
margins from the validated results
described above, we evaluated each of
the modified data sets to identify the
most appropriate and reasonable
revision from an engineering science
perspective (or based on good
engineering practice). Based on this
evaluation, we selected the modification
scenario where some data from three
test points (emission results at specific
engine speed and load combinations)
from one of the test engines were
excluded from the data set. These data
reflected atypically elevated levels of
NOX with large and inconsistent
measurement errors. The other
modification scenarios, while
justifiable, were judged to represent
somewhat more extreme or difficult to
10 See ‘‘Additional Analyses of the Monte Carlo
Model Developed for the Determination of PEMS
Measurement Allowances for Gaseous Emissions
Regulated Under the Heavy-Duty Diesel Engine InUse Testing Program,’’ August 2007, EPA report
number: EPA420–R–07–010. A copy of the report is
available in the public docket for this rule and at
the EPA/OTAQ Web site (https://www.epa.gov/otaq/
hd-hwy.htm).
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defend manipulations of the data on a
relative basis.
After selecting the most appropriate
modified data set, we determined the
final accuracy margins by applying the
‘‘minimum of the maximums’’ selection
criteria from the original test plan to the
three calculation methods. This showed
that the largest percentage errors were
associated with NOX and that Method 2
had the lowest error for that pollutant of
the three methods.11 Therefore,
pursuant to the results of the original
test plan, the subsequent validation
work performed by EPA, and after
discussions with the other parties to the
MOA, we are promulgating the final
emission measurement accuracy
margins shown in Table 1 for all the
calculation methodologies beginning
13445
with 2010 model year engine families.
Also as shown in the table, we are
adopting these same numerical values
for Methods 2 and 3 for 2007 through
2009 model year engines, at the
discretion of the engine manufacturers,
in order to provide a full compliment of
calculation methods and accuracy
margins for those engines.
TABLE 1.—FINAL MEASUREMENT ACCURACY MARGINS FOR THE ENFORCEABLE GASEOUS EMISSIONS IN-USE TESTING
PROGRAM
Accuracy margins
(g/bhp-hr)
Pollutant
Method 1 only
NMHC ......................................................................................................................
CO ............................................................................................................................
NOX ..........................................................................................................................
B. NMHC Plus NOX In-Use Testing
Accuracy Margins
The June 2005 final rule that
implemented the in-use testing program
addressed accuracy margins for each of
the gaseous pollutants and their
associated individual standards, i.e.,
NMHC, CO, and NOX. The MOA and
subsequent gaseous emissions test
program also focused on identifying the
final accuracy margins for these
individual pollutants. In developing the
original rule and subsequent test
program, however, we failed to
recognize that 2004 through 2006 model
year diesel engine families may be
certified to a combined NOX plus
NMHC standard under § 86.004–11(a)(1)
2010 and later
model year engines
2007–2009
model year engines
Methods 2 and 3
0.02
0.5
0.45
of the applicable regulations.
Furthermore, under the ‘‘phase-in
options’’ of § 86.007–11(g)(1) an engine
manufacturer may optionally certify
some of its production in model years
2007 through 2009 to the combined
NOX plus NMHC standard for 2006
model year engines under § 86.2004–11,
rather than the otherwise applicable
individual NOX and NMHC standards.
Therefore, we are correcting this
oversight by promulgating in-use testing
accuracy margins for 2004–2009 model
year engines that may be certified to the
combined NOX plus NMHC standard.
The methodology for determining an
accuracy margin for the combined NOX
plus NMHC emission standard is the
same as that used to determine the
All methods
0.01
0.25
0.15
0.01
0.25
0.15
numerical value of the combined
standard itself. Specifically, the
individual NOX and NMHC accuracy
margins are simply added together to
provide a single value. Therefore, for
2004–2007 model year engines that may
be tested under the gaseous emission
pilot program for the 2006 and 2007
calendar years, the combined accuracy
margin is the sum of the individual NOX
and NMHC values already contained in
§ 86.1912, or 0.67 g/bhp-hr. For engines
tested in the enforceable program that
begins in the 2007 calendar year and
applies to 2007 and later model year
diesel engines, the combined NOX plus
NMHC accuracy margins, using the
individual values from Table 1, are
shown in Table 2.
TABLE 2.—FINAL COMBINED NOX PLUS NMHC MEASUREMENT ACCURACY MARGINS FOR THE ENFORCEABLE GASEOUS
EMISSIONS IN-USE TESTING PROGRAM
Accuracy margins for 2007–2009
model year engines
(g/bhp-hr)
Pollutant
Method 1 only
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NOX + NMHC ..............................................................................................................................................
Methods 2 and 3
0.47
0.16
C. Delaying the Enforceable PM Program
From 2008 to 2009
The MOA described in section IV.
acknowledged that in order to
promulgate new measurement accuracy
margins with adequate lead time to
begin the 2008 enforceable PM program,
certain key milestone dates in the test
program had to be achieved. For
example, all the parties agreed that the
final accuracy margins and
documentation were needed by
November 1, 2007. That meant the final
test plan would have to be agreed upon
by September 2006, given the time
needed to complete the testing and
analysis. Contingencies for missing the
final delivery date were specified in the
MOA and in the June 2005 final
rulemaking.12 Most relevant to this
action was that if the final values and
11 ‘‘Selection of Final Gaseous Emission
Measurement Accuracy Margins for Portable
Emission Measurement Systems,’’ memorandum
from Richard S. Wilcox, U.S. Environmental
Protection Agency, to Docket No. EPA–HQ–OAR–
2004–0072, dated November 4, 2007. A copy of the
document is available in the public docket for this
rule.
12 See 40 CFR 86.1935.
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documentation were delayed more than
three months from November 1, 2007,
then the PM pilot program would
continue for calendar year 2008 in place
of the fully enforceable program for that
year.
Completing the PM test program on
schedule required that the initial work
be conducted in parallel with the
ongoing gaseous emission test program
using the same contractors and
personnel from EPA, CARB, and the
engine manufacturers. Due to
unexpected issues in the gaseous
emission test program and the lack of
other resources, all work on the PM test
plan and subsequent test program had to
be postponed. The end result of this
postponement is that the final accuracy
margin for PM will be delayed by
approximately one year. Accordingly,
the MOA and in-use test program
regulations require that the first year of
the previously adopted enforceable
program (calendar year 2008) be placed
into abeyance and the PM pilot program
continued for that year. Hence, the
enforceable PM program will now begin
in 2009 calendar year.
In isolation, delaying the start of the
enforceable PM program by one year
and continuing the PM pilot program for
that year would result in a three-year
pilot, i.e., 2006 through 2008, as
described above. However, as explained
in the next section, we also believe it is
appropriate to eliminate the first year of
the original two-year pilot program. As
a result, a two-year PM pilot will still
occur as originally envisioned beginning
with the 2007 calendar year.
D. Suspending the 2006 PM Pilot
Program
The in-use testing program, as
originally adopted in June 2005,
included a two-year pilot (i.e.,
demonstration) program for PM
emissions in calendar years 2006 and
2007. In establishing this requirement,
EPA noted that the onboard
measurement of PM emissions was
significantly more challenging than for
gaseous emissions, and that further
development of the requisite portable
measurement systems would be needed.
We also stated that our technical
assessment indicated that these systems
would be available in time to start the
in-use testing program. More
specifically with regard to the PM pilot
program, we noted our expectation that
engine manufacturers would use ‘‘best
available’’ prototype systems that were
capable of measuring these emissions as
required. Nonetheless, in recognition of
the then remaining technical
uncertainties, we added a provision to
the regulations that would suspend the
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in-use test program as it applied to PM
measurement if we discovered
fundamental technical problems with
portable in-use PM measurement
systems that could not be resolvable in
a reasonable time.
In a letter dated January 4, 2007, EMA
requested that the first year of the twoyear PM pilot program be held in
abeyance.13 The principle reasons were
summarized as follows: (1) Suitable
portable measurement systems are not
commercially available; (2) fundamental
technical issues remain to be resolved;
(3) the joint program to develop a datadriven PM accuracy margin for these
devices has been delayed at least one
year; and (4) the final in-use testing
regulation and the MOA require the
one-year delay. The third issue relates to
the delay of the first year of the fully
enforceable PM test program from 2008
until 2009 as discussed in the previous
section. The last issue relates to
regulatory requirement to delay the PM
measurement program if fundamental
technical problems were discovered as
described in the preceding paragraph.
Focusing on the first two points, we
reminded EMA at the time that although
some parties may interpret the term
‘‘commercially available’’ differently,
the original rulemaking clearly stated
the expectation that prototype portable
measurement systems would be used in
the PM pilot program if they could
accurately and reliably measure PM
emissions. This was acceptable because
the pilot is designed for the engine
manufacturers and EPA to gain
experience in implementing the in-use
testing program and using the portable
measurement systems. Also, we noted
that both EPA and some engine
manufacturers had already purchased
prototype portable PM measurement
systems meeting these requirements.
Finally, we described how we had
successfully used the same prototype
system to measure PM emissions over
NTE events while traveling crosscountry in a particulate trap-equipped
truck using ultra-low sulfur diesel
fuel.14 Therefore, we concluded that
acceptable measurement systems were
available and no fundamental,
irresolvable issues had been identified
that would justify a delay in the pilot
program. Nonetheless, we invited EMA
13 See letter from Timothy A. French, Engine
Manufacturers Association, to Khesha Jennings,
U.S. Environmental Protection Agency, dated
January 4, 2007. A copy of the letter is available in
the public docket for this rule.
14 ‘‘Road Test of an On-board Particulate Matter
Mass Measurement System,’’ D. R. Booker, Sensors,
Inc., R. A. Giannelli and J. Hu, U.S. Environmental
Protection Agency, March 2007, SAE paper number
2007–01–1116.
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to further elaborate on their technical
concerns with the currently available
measurement systems.
In a subsequent letter dated April 11,
2007, EMA more specifically detailed its
technical concerns with currently
available portable PM measurement
systems.15 Specifically, EMA listed
fourteen technical considerations. These
generally can be summarized as follows:
(1) The devices had not been
demonstrated as meeting the technical
requirements of EPA’s 40 CFR 1065; (2)
the engine manufacturers’ have no
current experience with the
measurement device because the current
version is relatively new, the instrument
manufacturer does not offer all the
accessories needed to install and
operate the system; (3) mounting the
units on some trucks presents
installation issues; (4) the sampling
technology will not work properly with
dirtier pre-2007 engines; (5) no training
from the instrument manufacturer was
available; and (6) a number of issues
with accuracy and repeatability remain
to be resolved. They also argued that it
would be better to take the time now to
focus on developing better portable PM
measurement devices and, thereby,
helping to ensure a successful launch of
the fully enforceable program in 2009,
especially since we would still have a
full two years of the PM pilot program
as originally called for by the
regulations.
After carefully considering EMA’s
more explicit concerns, we concluded
that: (1) A number of the issues were
only relevant to the future fully
enforceable program, not the pilot
demonstration program; (2) EPA and
EMA could work to resolve some issues
such as only testing existing or
prototype lower emitting buses or
trucks; and (3) the remaining items
simply did not by themselves reach a
level that would justify delaying the
pilot program. At the same time, we
agreed with EMA that it is more
important to continue to work
cooperatively for a successful launch of
the enforceable PM in-use testing
program, especially since we will still
have a two-year pilot. Therefore, at that
point in time, we decided it was in the
best interests of all parties to eliminate
the 2006 calendar year pilot program
and focus our collective efforts to
improve the current portable PM
measurement systems and conduct the
cooperative research and development
program for this pollutant.
15 See letter from Timothy A. French, Engine
Manufacturers Association, to Khesha Jennings,
U.S. Environmental Protection Agency, dated April
11, 2007. A copy of the letter is available in the
public docket for this rule.
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E. Revised Schedules and Testing
Flexibilities for the 2005 Through 2009
In-Use Test Programs
The June 2005 final rule that
established the heavy-duty in-use test
program stated that EPA would
typically select engine families for
testing in June of each calendar year.
Further, the regulations allowed 18
months from the time engine families
were designated for engine
manufacturers to complete all testing
and report the results to EPA.
13447
Subsequent to the final rule, we found
that certain adjustments to the test
schedules were necessary in the early
years of the program for the reasons
given below. The adjustments for engine
family designation and reporting dates
are summarized in Table 3.
TABLE 3.—REVISED ENGINE FAMILY DESIGNATION AND REPORTING SCHEDULES
Designate families
Report due
Program
Original
2005
2006
2007
2007
2008
2008
2009
2009
2010
2010
Gaseous Pilot * ...................................................
Gaseous Pilot .....................................................
Gaseous Enforceable .........................................
PM Pilot ..............................................................
Gaseous Enforceable .........................................
PM Pilot ..............................................................
Gaseous Enforceable .........................................
PM Enforceable ..................................................
Gaseous Enforceable ** .....................................
PM Enforceable ** ..............................................
06/2005
06/2006
06/2007
06/2007
06/2008
06/2008
06/2009
06/2009
06/2010
06/2010
Revised
Original
Unchanged ......................
12/2006 ............................
12/2007 ............................
12/2007 ............................
09/2008 ............................
09/2008 ............................
Unchanged ......................
Unchanged ......................
Unchanged ......................
Unchanged ......................
11/2006
11/2007
11/2008
11/2008
11/2009
11/2009
11/2010
11/2010
11/2011
11/2011
Revised
11/2007.
11/2008.
11/2009.
05/2010.
03/2010.
09/2010.
04/2011.
04/2011.
Unchanged.
Unchanged.
* The 2005 Gaseous Pilot Program has been completed.
** For illustration only. The 2010 program dates are as originally promulgated.
mstockstill on PROD1PC66 with RULES
When the final rule was promulgated,
EPA was working with ARB and the
engine manufacturers to create a
standardized, electronic reporting
format which precisely specified each of
the numerous reporting data elements
and enabled the test results from the
portable emission measurement systems
to be reported into EPA’s computerized
database. We had envisioned that this
work would be completed in a timely
manner so that the 2005 gaseous
emissions pilot program could be
conducted as scheduled. However,
despite the diligent work of all parties,
creating the electronic reporting
guidance for this all new test program
proved more complex and time
consuming than expected. By
September 2005 it became obvious that
the lack of the reporting guidance
document had become an impediment
to efficiently conducting the in-use test
program. As a result, EPA agreed with
the engine manufacturers, and ARB
concurred, that the start of the 18-month
reporting period should be delayed until
a reporting guidance document was
issued.16
In late May 2006 the reporting
guidance was released and the 18month reporting period began in June of
that year and ended in November
2007.17 To accommodate this delay
without unduly compressing or
16 See letter from Merrylin Zaw-Mon, U.S.
Environmental Protection Agency, to John Duerr,
Detroit Diesel Corporation, dated November 15,
2005. A copy of the letter is available in the public
docket for this rule.
17 All manufacturers successfully reported the
2005 gaseous emission test results according to that
modified schedule.
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16:22 Mar 12, 2008
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overlapping the testing in subsequent
years, we are delaying engine family
designations, and sometimes extending
the reporting period, for the 2006
through 2008 gaseous emissions testing
programs. Specifically as shown in
Table 3, we are delaying engine family
designations for 2006 until December of
that year and extending the reporting
period to 24 months. For 2007, we are
similarly delaying engine family
designations and extending the
reporting period. Further, we are
shortening the delay in selecting engine
families for the 2008 gaseous emissions
enforceable program to four months, i.e.,
September of that year, and
subsequently returning to the normal
18-month reporting period. Finally, we
are aligning the engine family
designation dates for the 2007 and 2008
PM pilot programs with the revised
gaseous emissions program dates to
keep the program start dates the same.
We have more recently reevaluated
the schedules for the in-use PM test
program. Our reassessment was based
on the progress that is being made to
develop ‘‘data driven’’ emission
measurement allowances as part of the
comprehensive research, development,
and demonstration program outlined in
the MOA,18 as previously described in
section IV. The reassessment was also
made in the context that successfully
measuring PM emissions onboard a
18 See ‘‘Memorandum of Agreement, Program to
Develop Emission Measurement Accuracy Margins
for Heavy-Duty In-Use Testing,’’ dated May 2005. A
copy of the memorandum is available in the public
docket for this rule and at the EPA/OTAQ Web site
(https://www.epa.gov/otaq/hd-hwy.htm).
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vehicle and deploying this technology
in revenue service represents the
fundamental next step in emission
measurement technology and
environmental protection. On balance,
we have concluded that additional time
and added flexibility in the early years
of the in-use PM test program is
required now to help ensure that this
important programmatic advancement is
successful.
More specifically, last summer EPA
and the other contributors to the PM
accuracy margin development program
decided to do some pre-testing of a PM
PEMS prior to initiating the full test
program in order to further demonstrate
and refine the test protocol and
instrumentation. This led to some
technical changes to the PM PEMS
themselves. It also caused the full
accuracy margin development program
to be delayed. At nearly the same time,
some engine manufacturers stated that
they would like to use the initial results
from the full test program on the various
PM PEMS devices in order to make
more refined purchasing decisions and
to include any resulting upgrades to the
instruments. Given the importance of
the program and expense involved, we
believe it is reasonable to accommodate
the delay in initiating the full PM
accuracy margin development program
and to allow manufacturers to use the
initial test results for purchasing
decisions. Therefore, as shown in Table
3, we are adding a total of six months
to the testing period to the 2007 PM
pilot program. As with the gaseous
emissions program described above, we
are also extending the PM reporting
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periods for the 2008 pilot and the 2009
enforceable PM programs to avoid
compression effects. Further, we are
extending the reporting period for the
2009 enforceable gaseous emissions
program to match the revised period for
the 2009 enforceable PM program to
couple and realign the programs as
originally intended. Finally, we want to
make it clear that any month-to-month
delay (up to three months) in initiating
the 2009 enforceable PM program, as
outlined in the accuracy margin
development MOA 19 and described in
section IV, will have no effect on the
reporting dates described above, i.e., no
additional time.
Most recently engine manufacturers
have expressed concerns that procuring
and instrumenting test vehicles with PM
PEMS could, in some instances, be more
complex and time consuming than for
gaseous emissions testing. For example,
they claim that mounting the
instruments and running sampling lines
with current generation PM PEMS might
require drilling holes in a truck’s cab or
creating special mounting hardware. In
such cases, the manufacturers argue that
it might be difficult to obtain vehicles
from independent owners as required by
the current regulations. Engine
manufacturers have requested that they
be given the flexibility to recruit and
test vehicles from their captive fleets for
the 2007 PM pilot program based on
these concerns. In considering the
engine manufacturers appeal, we note
that the gaseous emissions enforceable
and PM pilot programs for that year
would have to be ‘‘decoupled’’ so that
the gaseous emissions program would
continue to be conducted according to
the applicable testing protocols, e.g.,
obtaining vehicles from independent
owners and testing them in normal
revenue service.
While we are not convinced that
current PM PEMS will cause these
unique challenges, we also can not
conclusively rule out some
instrumentation and recruiting issues in
the early part of the PM program. Again,
given the importance of successfully
launching this program, EPA is granting
the engine manufacturers’ request to
modify the PM pilot program test
protocols. Therefore, we are allowing
manufacturers to recruit vehicles from
their captive fleet and to test them while
being driven by a company employee.
However, manufacturers must ensure
that the vehicles are screened, prepared,
19 See ‘‘Memorandum of Agreement, Program to
Develop Emission Measurement Accuracy Margins
for Heavy-Duty In-Use Testing,’’ dated May 2005. A
copy of the memorandum is available in the public
docket for this rule and at the EPA/OTAQ Web site
(https://www.epa.gov/otaq/hd-hwy.htm).
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operated, and tested in accordance with
all other applicable requirements.
Furthermore, the vehicle must be tested
by being driven on a route that
reasonably replicates normal, in-use
revenue service for that type of vehicle.
The requirements for the enforceable
gaseous emissions test program for 2007
and 2008 are unchanged.
F. Removing the Gaseous Accuracy Test
Program From the Regulations
We are taking this opportunity to
delete the references in § 86.1935 that
pertain to the final report for gaseous
emission accuracy margins and the
consequences that would ensue if the
report was delayed beyond certain
dates. These provisions are no longer
needed because accuracy margins for
gaseous pollutants are being
promulgated in this Direct Final Rule.
The revised section, therefore,
appropriately focuses on the ongoing
development of accuracy margins for
PM emissions.
VI. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order (EO) 12866 (58 FR
51735, October 4, 1993) and is therefore
not subject to review under the EO. This
Direct Final Rule merely replaces the
interim gaseous emission measurement
accuracy allowances for portable
emission measurement systems with
final values and delays the in-use
testing implementation dates for the
fully enforceable PM test program as
either envisioned or allowed for in the
original final rule. This rule also grants
a request from the affected engine
manufacturers for a one year delay in
the start of the pilot testing program for
PM. Further, there are no costs
associated with this rule beyond those
envisioned in the original rule.
B. Paperwork Reduction Act
This direct final rule does not include
any new collection requirements, as it
acts to replace interim gaseous emission
measurement accuracy allowances for
portable emission measurement systems
with final values and delays the
implementation schedule for the in-use
PM testing program. Therefore, there are
no new paperwork requirements
associated with this rule.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
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needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
An agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
EPA has determined that it is not
necessary to prepare a regulatory
flexibility analysis in connection with
this direct final rule.
For purposes of assessing the impacts
of this final rule on small entities, a
small entity is defined as: (1) A small
business that meets the definition for
business based on SBA size standards at
13 CFR 121.201; (2) a small
governmental jurisdiction that is a
government of a city, county, town,
school district or special district with a
population of less than 50,000; and (3)
a small organization that is any not-forprofit enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today’s final rule on small
entities, EPA has concluded that this
action will not have a significant
economic impact on a substantial
number of small entities. In determining
whether a rule has a significant
economic impact on a substantial
number of small entities, the impact of
concern is any significant adverse
economic impact on small entities,
since the primary purpose of the
regulatory flexibility analyses is to
identify and address regulatory
alternatives ‘‘which minimize any
significant economic impact of the
proposed rule on small entities.’’ 5
U.S.C. 603 and 604. Thus, an agency
may conclude that a rule will not have
a significant economic impact on a
substantial number of small entities if
the rule relieves regulatory burden, or
otherwise has a positive economic effect
on all of the small entities subject to the
rule.
This direct final rule acts to replace
interim gaseous emission measurement
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accuracy allowances for portable
emission measurement systems with
final values and delays the
implementation schedule for the in-use
PM testing program. We have, therefore,
concluded that today’s final rule will
relieve regulatory burden for all small
entities and will not have a significant
economic impact on a substantial
number of small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
federal agencies to assess the effects of
their regulatory actions on state, local,
and tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with ‘‘federal mandates’’ that may result
in expenditures to state, local, and tribal
governments, in the aggregate, or to the
private sector, of $100 million or more
in any one year. Before promulgating an
EPA rule for which a written statement
is needed, section 205 of the UMRA
generally requires EPA to identify and
consider a reasonable number of
regulatory alternatives and adopt the
least costly, most cost-effective, or least
burdensome alternative that achieves
the objectives of the rule. The
provisions of section 205 do not apply
when they are inconsistent with
applicable law. Moreover, section 205
allows EPA to adopt an alternative other
than the least costly, most cost-effective,
or least burdensome alternative if the
Administrator publishes with the final
rule an explanation of why such an
alternative was adopted.
Before EPA establishes any regulatory
requirements that may significantly or
uniquely affect small governments,
including tribal governments, it must
have developed under section 203 of the
UMRA a small government agency plan.
The plan must provide for notifying
potentially affected small governments,
enabling officials of affected small
governments to have meaningful and
timely input in the development of EPA
regulatory proposals with significant
federal intergovernmental mandates,
and informing, educating, and advising
small governments on compliance with
the regulatory requirements.
This rule contains no federal
mandates for state, local, or tribal
governments as defined by the
provisions of Title II of the UMRA. The
rule imposes no enforceable duties on
any of these governmental entities.
Nothing in the rule would significantly
or uniquely affect small governments.
EPA has determined that this rule
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contains no federal mandates that may
result in expenditures of more than
$100 million to the private sector in any
single year. This direct final rule acts to
replace interim gaseous emission
measurement accuracy allowances for
portable emission measurement systems
with final values and delays the
implementation schedule for the in-use
PM testing program. The requirements
of UMRA, therefore, do not apply to this
action.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ are defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’
Under section 6 of Executive Order
13132, EPA may not issue a regulation
that has federalism implications, that
imposes substantial direct compliance
costs, and that is not required by statute,
unless the Federal government provides
the funds necessary to pay the direct
compliance costs incurred by State and
local governments, or EPA consults with
State and local officials early in the
process of developing the regulation.
EPA also may not issue a regulation that
has federalism implications and that
preempts State law, unless the Agency
consults with State and local officials
early in the process of developing the
regulation.
Section 4 of the Executive Order
contains additional requirements for
rules that preempt State or local law,
even if those rules do not have
federalism implications (i.e., the rules
will not have substantial direct effects
on the States, on the relationship
between the national government and
the states, or on the distribution of
power and responsibilities among the
various levels of government). Those
requirements include providing all
affected State and local officials notice
and an opportunity for appropriate
participation in the development of the
regulation. If the preemption is not
based on express or implied statutory
authority, EPA also must consult, to the
extent practicable, with appropriate
State and local officials regarding the
conflict between State law and
Federally protected interests within the
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13449
agency’s area of regulatory
responsibility.
This rule does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. This direct final
rule merely replaces interim gaseous
emission measurement accuracy
allowances for portable emission
measurement systems with final values
and delays the implementation schedule
for the in-use PM testing program.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination With
Indian Tribal Governments’’ (59 FR
22951, November 6, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ ‘‘Policies that have tribal
implications’’ is defined in the
Executive Order to include regulations
that have ‘‘substantial direct effects on
one or more Indian tribes, on the
relationship between the Federal
government and the Indian tribes, or on
the distribution of power and
responsibilities between the Federal
government and Indian tribes.’’
This rule does not have tribal
implications. It will not have substantial
direct effects on tribal governments, on
the relationship between the Federal
government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
government and Indian tribes, as
specified in Executive Order 13175.
This rule does not uniquely affect the
communities of Indian Tribal
Governments. Further, no circumstances
specific to such communities exist that
would cause an impact on these
communities beyond those discussed in
the other sections of this rule. This
direct final rule merely replaces interim
gaseous emission measurement
accuracy allowances for portable
emission measurement systems with
final values and delays the
implementation schedule for the in-use
PM testing program. Thus, Executive
Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
Executive Order 13045, ‘‘Protection of
Children From Environmental Health
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Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997) applies to any rule that
(1) is determined to be ‘‘economically
significant’’ as defined under Executive
Order 12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have a
disproportionate effect on children. If
the regulatory action meets both criteria,
section 5–501 of the Order directs the
Agency to evaluate the environmental
health or safety effects of the planned
rule on children, and explain why the
planned regulation is preferable to other
potentially effective and reasonably
feasible alternatives considered by the
Agency.
This rule is not subject to the
Executive Order because it is not
economically significant as defined in
EO 12866, and because the Agency does
not have reason to believe the
environmental health or safety risks
addressed by this action present a
disproportionate risk to children. This
direct final rule merely replaces the
interim gaseous emission measurement
accuracy allowances for portable
emission measurement systems with
final values and delays the
implementation schedule for the in-use
PM testing program.
mstockstill on PROD1PC66 with RULES
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not a ‘‘significant energy
action’’ as defined in Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001) because it is not likely to have
a significant adverse effect on the
supply, distribution or use of energy.
This direct final rule merely replaces
the interim gaseous emission
measurement accuracy allowances for
portable emission measurement systems
with final values and delays the
implementation schedule for the in-use
PM testing program.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary
consensus standards in its regulatory
activities unless doing so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (such as materials
specifications, test methods, sampling
procedures, and business practices) that
are developed or adopted by voluntary
consensus standards bodies. NTTAA
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directs EPA to provide Congress,
through OMB, explanations when the
Agency decides not to use available and
applicable voluntary consensus
standards.
This direct final rule does not involve
technical standards. This direct final
rule merely replaces the interim gaseous
emission measurement accuracy
allowances for portable emission
measurement systems with final values
and delays the implementation schedule
for the in-use PM testing program. Thus,
we have determined that the
requirements of the NTTAA do not
apply.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order (EO) 12898 (59 FR
7629 (Feb. 16, 1994)) establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this rule will
not have disproportionately high and
adverse human health or environmental
effects on minority or low-income
populations because it does not affect
the level of protection provided to
human health or the environment. This
direct final rule merely replaces the
interim gaseous emission measurement
accuracy allowances for portable
emission measurement systems with
final values and delays the
implementation schedule for the in-use
PM testing program.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as amended by the
Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to Congress and the
Comptroller General of the United
States. We will submit a report
containing this rule and other required
information to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States before publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
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This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This direct
final rule is effective on May 12, 2008.
L. Statutory Authority
The statutory authority for this action
comes from 42 U.S.C. 7401–7671q.
List of Subjects in 40 CFR Part 86
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Labeling, Motor vehicle pollution,
Reporting and recordkeeping
requirements.
Dated: February 28, 2008.
Stephen L. Johnson,
Administrator.
For the reasons set out in the
preamble, title 40, chapter I of the Code
of Federal Regulations is amended as
follows:
I
PART 86—CONTROL OF EMISSIONS
FROM NEW AND IN-USE HIGHWAY
VEHICLES AND ENGINES
1. The authority citation for part 86
continues to read as follows:
I
Authority: 42 U.S.C. 7401–7671q.
2. Section 86.1905 is amended by
revising paragraph (c)(2) to read as
follows:
I
§ 86.1905
How does this program work?
*
*
*
*
*
(c) * * *
(2) 2009 for PM testing.
*
*
*
*
*
I 3. Section 86.1912 is amended by
adding new paragraphs (a)(3)(v) and
(a)(5) and revising paragraph (a)(4) to
read as follows:
§ 86.1912 How do I determine whether an
engine meets the vehicle-pass criteria?
*
*
*
*
*
(a) * * *
(3) * * *
(v) NOX + NMHC: 0.67 grams per
brake horsepower-hour.
(4) Accuracy margins for portable inuse equipment when testing is not
performed under the special provisions
of § 86.1930 for 2007 through 2009
model year engine families that are
selected for testing in any calendar year
as follows:
(i) NMHC using the emission
calculation method specified in 40 CFR
1065.650(a)(1): 0.02 grams per brake
horsepower-hour.
(ii) NMHC using the emission
calculation method specified in 40 CFR
1065.650(a)(3): 0.01 grams per brake
horsepower-hour.
(iii) NMHC using an alternative
emission calculation method as
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approved by the Administrator under 40
CFR 1065.915(d)(5)(iv): 0.01 grams per
brake horsepower-hour.
(iv) CO using the emission calculation
method specified in 40 CFR
1065.650(a)(1): 0.5 grams per brake
horsepower-hour.
(v) CO using the emission calculation
method specified in 40 CFR
1065.650(a)(3): 0.25 grams per brake
horsepower-hour.
(vi) CO using an alternative emission
calculation method as approved by the
Administrator under 40 CFR
1065.915(d)(5)(iv): 0.25 grams per brake
horsepower-hour.
(vii) NOX using the emission
calculation method specified in 40 CFR
1065.650(a)(1): 0.45 grams per brake
horsepower-hour.
(viii) NOX using the emission
calculation method specified in 40 CFR
1065.650(a)(3): 0.15 grams per brake
horsepower-hour.
(ix) NOX using an alternative emission
calculation method as approved by the
Administrator under 40 CFR
1065.915(d)(5)(iv): 0.15 grams per brake
horsepower-hour.
(x) NOX + NMHC using the emission
calculation method specified in 40 CFR
1065.650(a)(1): 0.47 grams per brake
horsepower-hour.
(xi) NOX + NMHC using the emission
calculation method specified in 40 CFR
1065.650(a)(3): 0.16 grams per brake
horsepower-hour.
(xii) NOX + NMHC using an
alternative emission calculation method
as approved by the Administrator under
40 CFR 1065.915(d)(5)(iv): 0.16 grams
per brake horsepower-hour.
(xiii) PM: To be determined by
rulemaking as indicated in § 86.1935.
(5) Accuracy margins for portable inuse equipment when testing is not
performed under the special provisions
of § 86.1930 for 2010 or later model year
engines families that are selected for
testing in any calendar year as follows:
(i) NMHC using any emission
calculation method specified in 40 CFR
1065.650(a) or an alternative emission
calculation method as approved by the
Administrator under 40 CFR
1065.915(d)(5)(iv): 0.01 grams per brake
horsepower-hour.
(ii) CO using any emission calculation
method specified in 40 CFR 1065.650(a)
or an alternative emission calculation
method as approved by the
Administrator under 40 CFR
1065.915(d)(5)(iv): 0.25 grams per brake
horsepower-hour.
(iii) NOX using any emission
calculation method specified in 40 CFR
1065.650(a) or an alternative emission
calculation method as approved by the
Administrator under 40 CFR
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16:22 Mar 12, 2008
Jkt 214001
1065.915(d)(5)(iv): 0.15 grams per brake
horsepower-hour.
(iv) PM: To be determined by
rulemaking as indicated in § 86.1935.
*
*
*
*
*
I 4. Section 86.1930 is amended as
follows:
I a. By revising the section heading.
I b. By redesignating paragraphs (a)
through (f) as paragraphs (a)(1) through
(a)(6).
I c. By redesignating the introductory
text as paragraph (a) introductory text.
I d. By revising newly designated
paragraph (a) introductory text.
I e. By redesignating newly designated
paragraphs (a)(4)(1) and (2) as
paragraphs (a)(4)(i) and (ii).
I f. By adding new paragraphs (a)(7) and
(b).
§ 86.1930 What special provisions apply
from 2005 through 2009?
(a) We may direct you to test engines
under this subpart for emissions other
than PM in 2005 and 2006, and for PM
emissions in 2007 and 2008. In those
interim periods, all the provisions of
this subpart apply, with the following
exceptions:
*
*
*
*
*
(7) You must complete all the
required testing and reporting under
this subpart by the following dates:
(i) November 30, 2007 for engine
families that we designate for non-PM
testing in 2005.
(ii) November 30, 2008 for engine
families that we designate for non-PM
testing in 2006.
(iii) May 31, 2010 for engine families
that we designate for PM testing in
2007.
(iv) September 30, 2010 for engine
families we designate for PM testing in
2008.
(b) For 2007 through 2009 all the
provisions of this subpart and paragraph
(a) of this section apply, with the
following additional exceptions:
(1) You must complete all the
required testing and reporting under
this subpart by the following dates:
(i) November 30, 2009 for engine
families that we designate for non-PM
testing in 2007.
(ii) March 31, 2010 for engine families
that we designate for non-PM testing in
2008.
(iii) April 30, 2011 for engine families
that we designate for non-PM and PM
testing in 2009.
(2) You may conduct non-PM and PM
testing on different vehicles for engine
families that we designate in 2007 and
2008.
(3) You may conduct PM testing as
follows for 2007:
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13451
(i) Test vehicles may be selected from
a vehicle fleet that you own or
otherwise directly control.
(ii) Test vehicles may be operated by
a driver that you employ.
(iii) Each test vehicle must be
operated on a route and under operating
conditions that reasonably replicate the
use of the selected vehicle type when
operated in typical revenue service,
unless otherwise approved by us.
I 5. Section 86.1935 is revised to read
as follows:
§ 86.1935 What special provisions may
apply as a consequence of a delay in the
particulate matter accuracy margin report
for portable emission measurement
systems?
(a) A memorandum entitled,
‘‘Memorandum of Agreement, Program
to Develop Emission Measurement
Accuracy Margins for Heavy-Duty InUse Testing’’ describes a test program
for establishing measurement accuracy
margins related to testing under
§ 86.1912(a)(4) which will be used for
testing under this subpart. This
document is available at https://
www.epa.gov/otaq/hd-hwy.htm or at the
mailing address specified in
§ 86.1905(g).
(b) If there is a delay in receiving the
written final report for PM emissions
described in the agreement referenced
in paragraph (a) of this section, and that
delay is not attributable to engine
manufacturers failing to meet their
commitments under that agreement, the
following provisions apply:
(1) If the delay is 3 months or less, we
will delay the designation of engine
families for testing in the applicable
calendar year, as described in
§ 86.1905(d), by the same number of
additional whole months (rounded up)
needed to complete the report.
(2) If the delay is more than 3 months
but less than 12 months, we may
continue to designate engine families for
testing under the special provisions
described in § 86.1930 for an additional
year.
(3) If the delay is longer than 12
months, the following approach is
established for the applicable calendar
year:
(i) If the delay is longer than 12
months but less than 15 months, we will
follow the steps described in paragraph
(b)(1) of this section.
(ii) If the delay is longer than 15
months, but, less than 24 months, we
will follow the steps described in
paragraph (b)(2) of this section, for the
applicable calendar year.
(iii) If the delay is longer than 24
months, the emission testing program
will go into abeyance.
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Federal Register / Vol. 73, No. 50 / Thursday, March 13, 2008 / Rules and Regulations
(c) If one or more engine
manufacturers fail to meet commitments
under the agreement described in
paragraph (a) of this section and such a
failure results in a delay in the final
written report for PM emissions
described in the agreement, the
following provisions apply:
(1) If the delay is 3 months or less, we
will delay the designation of engine
families for testing in the applicable
calendar year, as described in
§ 86.1905(d), by the same number of
additional whole months (rounded up)
needed to complete the report.
(2) If the delay is more than 3 months
but less than 12 months, the provisions
of this subpart will not apply for the
otherwise applicable calendar year,
subject to the following provisions:
(i) We may identify the number of
engine families that would otherwise
have been designated for testing in that
calendar year for the delayed pollutant
type and direct manufacturers to test
that number of engine families under
the special provisions described in
§ 86.1930 and additionally in any later
calendar year once the provisions of this
subpart begin for that pollutant type,
without counting those accumulated
engine families toward the allowable
annual cap on the number of engine
families specified in § 86.1905.
(ii) The normal 18-month period for
testing and reporting results specified in
§ 86.1905(d) is extended to 24 months
for any accumulated engine-family
designation described in paragraph
(c)(2)(i) of this section. The additional
time extensions for testing and reporting
results as specified in § 86.1905(d) also
apply.
(3) If the delay is longer than 12
months, the following approach is
established for the applicable calendar
year.
(i) If the delay is longer than 12
months but less than 15 months, we will
follow the steps described in paragraph
(c)(1) of this section.
(ii) If the delay is longer than 15
months, but less than 24 months, we
will follow the steps described in
paragraph (c)(2) of this section for the
applicable calendar year.
(iii) If the delay is longer than 24
months, we will continue to follow the
steps described in paragraphs (c)(1) and
(c)(2) of this section, including the
accumulation of engine families for
testing until the report is received and
the fully implemented program
commences.
(d) We may determine that any
individual manufacturer’s failure under
paragraph (c) of this section constitutes
a failure by all engine manufacturers.
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16:22 Mar 12, 2008
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(e) Nothing in this section affects our
ability to select engines from any model
year beginning with model year 2007, or
for gaseous emission testing.
(f) If we determine that fundamental
technical problems with portable in-use
PM measurement systems are not
resolvable in a reasonable time, the
provisions of this subpart, as they apply
to PM, will go into abeyance until we
determine that suitable emissionmeasurement devices are available for
in-use testing.
(g) Engine manufacturers contributing
to the test programs described in the
agreement referenced in paragraph (a) of
this section may limit their testing
under the special provisions described
in § 86.1930 to five engines in each
selected engine family.
[FR Doc. E8–4388 Filed 3–12–08; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[MB Docket Nos. 00–168, 00–44; FCC 07–
205]
Standardized and Enhanced
Disclosure Requirements for
Television Broadcast Licensee Public
Interest Obligations; Extension of the
Filing Requirement for Children’s
Television Programming Report (FCC
Form 398)
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
SUMMARY: In this document, the
Commission adopts a standardized form
for the quarterly reporting of
programming aired in response to issues
facing a television station’s community
and a requirement that portions of each
television station’s public inspection
file be placed on the Internet. The
Commission solicited and reviewed
comments regarding whether the
current requirements pertaining to
television stations’ public inspection
files were sufficient to ensure that the
public has adequate access to
information on how the stations are
serving their communities.
DATES: The rules in this document
contain information collection
requirements that have not been
approved by the Office of Management
and Budget (OMB). After OMB approval
is received, the Commission will
publish a document in the Federal
Register announcing the effective date
of the rules.
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FOR FURTHER INFORMATION CONTACT:
For
additional information on this
proceeding, contact Holly Saurer,
Holly.Saurer@fcc.gov of the Media
Bureau, Policy Division, (202) 418–
2120.
This is a
summary of the Commission’s Report
and Order, FCC 07–205, adopted on
November 27, 2007, and released on
January 24, 2008. The full text of this
document is available for public
inspection and copying during regular
business hours in the FCC Reference
Center, Federal Communications
Commission, 445 12th Street, SW., CY–
A257, Washington, DC 20554. These
documents will also be available via
ECFS (https://www.fcc.gov/cgb/ecfs/).
(Documents will be available
electronically in ASCII, Word 97, and/
or Adobe Acrobat.) The complete text
may be purchased from the
Commission’s copy contractor, 445 12th
Street, SW., Room CY–B402,
Washington, DC 20554. To request this
document in accessible formats
(computer diskettes, large print, audio
recording, and Braille), send an e-mail
to fcc504@fcc.gov or call the
Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act of 1995
Analysis
Initial Paperwork Reduction Act of 1995
Analysis
This document contains information
collection requirements subject to the
Paperwork Reduction Act of 1995
(PRA), Public Law 104–13. It will be
submitted to the Office of Management
and Budget (OMB) for review under
Section 3507(d) of the PRA. OMB, the
general public, and other Federal
agencies will be invited to comment on
the information collection requirements
contained in this proceeding. The
Commission will publish separate
documents in the Federal Register at a
later date seeking these comments. In
addition, we note that pursuant to the
Small Business Paperwork Relief Act of
2002, Public Law 107–198, see 44 U.S.C.
3506(c)(4), we seek specific comment on
how the Commission might ‘‘further
reduce the information collection
burden for small business concerns with
fewer than 25 employees.’’
Summary of the Report and Order
I. Introduction
1. We commenced this proceeding to
determine whether our current
requirements pertaining to television
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]]>Agencies
[Federal Register Volume 73, Number 50 (Thursday, March 13, 2008)]
[Rules and Regulations]
[Pages 13441-13452]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-4388]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 86
[EPA-HQ-OAR-2004-0072; FRL-8539-3]
RIN 2060-A-069
In-Use Testing for Heavy-Duty Diesel Engines and Vehicles;
Emission Measurement Accuracy Margins for Portable Emission Measurement
Systems and Program Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: In a rule published on June 14, 2005, EPA established a
manufacturer-run, in-use testing program for heavy-duty diesel
vehicles. The program requires engine manufacturers to measure exhaust
emissions from their diesel engines using portable emissions
measurement systems during real-world operation. At the time the rule
was promulgated, EPA established interim emission measurement
``accuracy'' margins for the requisite portable emission measurement
devices pending the development of final accuracy margins through a
comprehensive research program. This Direct Final Rule adopts the
resulting final accuracy margins for gaseous pollutants. Also, this
rule makes several changes to the program in the early years of in-use
testing. First, we are eliminating the first calendar year, i.e., 2006,
of the two-year pilot program for particulate emissions (PM) in
response to engine manufacturers' concerns, which primarily relate to
the availability and efficacy of the requisite portable measurement
systems (PEMS) for that pollutant. Second, due to a delay in developing
the final accuracy margin for PM under the aforementioned comprehensive
research program, we are delaying the first year of the fully
enforceable PM test program from the 2008 calendar year to the 2009
calendar year. During the 2008 calendar year, there will be another
year of pilot program testing for that pollutant. Third, and finally,
we are extending the normal period for reporting in-use test results
during the initial years of the program and allowing certain short-term
changes in how vehicles are recruited and tested. These revisions are
primarily intended to address delays in initiating the gaseous emission
and PM pilot programs, manufacuturers' concerns regarding the schedule
for initial purchases of PM measurement systems, and manufacturers'
concerns regarding potential difficulties of initially instrumenting
vehicles with these units.
DATES: This is effective on May 12, 2008 without further notice, unless
EPA receives adverse comment by April 14, 2008. If EPA receives adverse
comment, we will publish a timely withdrawal of the Direct Final Rule
in the Federal Register informing the public that the rule will not
take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2004-0072, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: a-and-r-docket@epa.gov.
Fax: (202) 566-9744.
Mail: Environmental Protection Agency, Mail Code: 2822T,
1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include two
copies.
Hand Delivery: U.S. Environmental Protection Agency, EPA
Headquarters Library, EPA West Building, Room: 3334, 1301 Constitution
Avenue, NW., Washington, DC. Such deliveries are only accepted during
the Docket's normal hours of operation, and special arrangements should
be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2004-0072. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at https://www.epa.gov/oar/dockets.html.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the EPA Docket Center, EPA
West Building, EPA Headquarters Library, Room 3334, 1301 Constitution
Avenue, 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
[[Page 13442]]
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: Richard Wilcox, Assessment and
Standards Division, Office of Transportation and Air Quality, 2000
Traverwood Drive, Ann Arbor, MI 48105; telephone number: (734) 214-
4390; fax number: (734) 214-4939; e-mail address: wilcox.rich@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Why Is EPA Using a Direct Final Rule?
EPA is publishing this rule without a prior proposal because we
view this action as noncontroversial and anticipate no adverse comment.
However, in the ``Proposed Rules'' section of today's Federal Register
publication, we are publishing a separate document that will serve as
the proposal to adopt the provisions in this Direct Final Rule if
adverse comments are received on this rule. We will not institute a
second comment period on this action, however. Any parties interested
in commenting must do so at this time. For further information about
commenting on this rule, see the ADDRESSES section of this document.
If EPA receives adverse comment or a request for public hearing, we
will publish a timely withdrawal in the Federal Register informing the
public that this direct final rule will not take effect. We would
address all public comments in any subsequent final rule based on the
proposed rule.
II. Does This Action Apply to Me?
This action will affect companies that manufacture and certify all-
terrain vehicles for sale in the United States.
------------------------------------------------------------------------
Examples of
Category NAICS code \a\ potentially affected
entities
------------------------------------------------------------------------
Industry..................... 336112; 336120 Engine and Truck
Manufacturers.
Industry..................... 811112; 811198 Independent
commercial importers
of vehicles and
parts.
------------------------------------------------------------------------
\a\ North American Industry Classification System (NAICS).
To determine whether particular activities may be affected by this
action, you should carefully examine the regulations. You may direct
questions regarding the applicability of this action as noted in FOR
FURTHER INFORMATION CONTACT.
III. What Should I Consider as I Prepare My Comments for EPA?
A. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as (CBI). In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
B. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
IV. Background
The manufacturer-run, in-use testing program for heavy-duty diesel
vehicles that are used on the highway was promulgated in June 2005 to
monitor the emissions performance of the engines used in those vehicles
when operated under a wide range of real world driving conditions.\1\
The program is specifically intended to monitor compliance with the
applicable Not-to-Exceed (NTE) exhaust emission standards for non-
methane hydrocarbons (NMHC), carbon monoxide (CO), oxides of nitrogen
(NOX), and particulate matter (PM). It requires each
manufacturer of heavy-duty highway diesel engines to assess the in-use
exhaust emissions from their engines using onboard, portable emission
measurement systems (PEMS) during typical operation while on the road.
---------------------------------------------------------------------------
\1\ See ``Control of Emissions of Air Pollution From New York
Motor Vehicles: In-Use Testing for Heavy-Duty Diesel Engines and
Vehicles, 70 FR 34594 (June 14, 2005).''
---------------------------------------------------------------------------
The in-use testing program begins with a two-year pilot (i.e.,
demonstration) program for gaseous emissions (i.e., NMHC, CO, and
NOX) in calendar years 2005 and 2006. As originally adopted,
the program also includes a pilot program for PM emissions in calendar
years 2006 and 2007. The one-year offset acknowledged that the portable
measurement system technology for PM emissions was lagging that for
measuring gaseous emissions. The programs are fully enforceable after
their respective pilot program ends, i.e., the 2007 calendar year for
gaseous emissions and the 2008 calendar year for PM emissions. The
enforceable program applies to 2007 and later model year diesel
engines. Each manufacturer generally has 18 months to report all
required test results for the engine families that EPA selects for
testing in any calendar year.
For the purposes of the in-use testing program, EPA established a
vehicle pass/fail criterion for each pollutant that compares a
vehicle's measured in-use emissions to a corresponding numerical
compliance limit, i.e., NTE threshold. The NTE threshold for each
pollutant is the sum of the NTE standard, any in-use compliance testing
margin that is already allowed by the regulations, and a new emission
measurement accuracy margin associated with the use of PEMS. The PEMS
accuracy margin is the difference between the emission measurement
error for the portable instrument and the measurement error for
``laboratory grade'' instruments that are used to test vehicles or
engines on a dynamometer in a laboratory setting. The accuracy
allowances are expressed in the same numerical terms as the
[[Page 13443]]
applicable NTE emission standards, i.e., grams of pollutant per brake
horsepower-hour (g/bhp-hr).
When the in-use testing program was first established in June of
2005, there was uncertainty regarding what specific accuracy margins
should be used in the in-use testing program, since the portable
measurement devices that were expected to be used in the program had
not been rigorously tested at that time. As a result, we promulgated
interim accuracy allowances for use in the pilot programs.\2\ These
interim values were believed to represent an upper bound of the
possible instrumentation variability based on our experience with
portable and laboratory instruments and test methods.
In May of 2005, shortly before the in-use test program was
promulgated, EPA entered into a memorandum of agreement (MOA) with the
California Air Resources Board (CARB) and the manufacturers of heavy-
duty highway diesel engines (through the Engine Manufacturers
Association (EMA)) to develop ``data driven'' emission measurement
allowances through a comprehensive research, development, and
demonstration program for the fully enforceable programs, i.e.,
beginning in the 2007 calendar year for gaseous emissions and the 2008
calendar year for PM.\3\ The overall test program was designed to be
completed in two phases. The first phase addressed gaseous emission
accuracy margins and the second phase addressed PM emission accuracy
margins. The program was to be managed by EPA, in close cooperation
with CARB and the involved engine manufacturers.
The MOA also addressed the consequences of failing to complete the
accuracy margin development work in time for the scheduled start of
either the gaseous or PM enforceable programs. Two of these provisions
are most relevant to today's rule. The first provision addresses short
term delays in receiving the final accuracy margins. Specifically, for
each month the accuracy margins are delayed beyond the agreed upon
dates, then affected gaseous emissions or PM enforceable program, i.e.,
either gaseous emissions or PM, would be delayed by the same number of
months up to three months. The second provision addresses delays in
excess of three months. In particular, if the accuracy allowances were
delayed beyond three months of the agreed upon dates, then the affected
gaseous or PM enforceable program would be placed in abeyance for a
year and the respective pilot program would be extended to include that
year using the interim allowance(s).
Finally, the MOA acknowledged that if fundamental, irresolvable
technical problems were identified relative to PM PEMS, the PM portion
of the in-use testing program would be placed into abeyance until such
time as suitable devices were identified and available, or the problems
otherwise resolved.
V. Details of the Rule
This Direct Final Rule establishes new, final gaseous emission
measurement margins that are required for the manufacturer-run, in-use
test program for heavy-duty diesel vehicles and engines. This Direct
Final Rule also makes several changes to the in-use test program in the
early years of testing. First, it places the fully enforceable PM
program, which would have begun in 2008, into abeyance for one year due
to delays in the accuracy margin development program. In its place, the
pilot program for PM will be extended into 2008. Second, it grants a
request by EMA and its member companies to place the 2006 PM pilot
program into abeyance to accommodate their concerns regarding the
availability and efficacy of PM PEMS. Third, it provides engine
manufacturers with additional time to conduct in-use testing and report
the results to EPA because of delays in developing the requisite
electronic reporting guidance, additional short-term delays in the PM
accuracy margin development program, and to grant a request from some
engine manufacturers to delay PM PEMS purchasing decisions until they
could evaluate the initial results of the PM accuracy margin. That will
allow them to make more refined purchasing decisions and to have the
resulting PM PEMS include any instrumentation upgrades that may be
forthcoming. Fourth, it grants a request from engine manufacturers for
the flexibility to recruit and test separate vehicles for the 2007 and
2008 gaseous emissions and PM test programs, and to recruit test
vehicles from their internal fleets and test them while being operated
by company employees for the 2007 PM pilot program. This addresses the
manufacturers' concerns that procuring and instrumenting test vehicles
with PM PEMS could, in some instances, be more complex and time
consuming than for gaseous emissions testing. Finally, this rulemaking
removes references in the applicable regulations to the development of
final accuracy margins for measuring gaseous emissions with portable
systems because that program has been completed. Each of these changes
is further described separately below.
A. Gaseous Emission Measurement Margins for Manufacturer-Run, In-Use
Testing
1. Results of the Test Program Under the Memorandum of Agreement (MOA)
The MOA (described in section IV.) called for development of a
comprehensive test plan for determining the final emission measurement
accuracy margins for the manufacturer-run, in-use testing program. The
test plan for the gaseous pollutants was subsequently agreed upon on
May 20, 2005.\4\ Generally, the detailed plan included a methodology
that called for: (1) Comprehensive engine testing in the laboratory to
assess the agreed upon sources of possible error and the resultant
measurement variability between the PEMS and laboratory instrumentation
and measurement methods; (2) the effects of environmental conditions on
PEMS error and the variability in key engine parameters supplied by the
engine's electronic controls to the PEMS; (3) the development of a
statistically-based computer model to simulate effects of all sources
of error on the final measurement accuracy margins; and (4) validation
of the simulation model results and resulting accuracy margins against
data generated through actual in-use field testing using simultaneous
on-vehicle measurements from a mobile emissions laboratory (i.e.,
laboratory-grade instruments mounted inside a trailer) and a PEMS unit.
This validation step is important because it provides confidence that
the simulation model results reflect reasonable measurement allowances.
If the two methods do not statistically agree, then there may be
possible errors in the simulation model, the in-use mobile emissions
testing results, or both.
---------------------------------------------------------------------------
\2\ The interim additive accuracy margins for the pilot programs
are: NMHC = 0.17 g/bhp-hr, NOX = 0.50 g/bhp-hr, CO = 0.60
g/bhp-hr, and PM = 0.10 g/bhp-hr.
\3\ See ``Memorandum of Agreement, Program to Develop Emission
Measurement Accuracy Margins for Heavy-Duty In-Use Testing,'' dated
May 2005. A copy of the memorandum is available in the public docket
for this rule and at the EPA/OTAQ Web site (https://www.epa.gov/otaq/
hd-hwy.htm).
\4\ See ``Test Plan to Determine PEMS Measurement Allowances for
the Gaseous Emissions Regulated Under the Manufacturer-Run Heavy-
Duty Diesel In-Use Testing Program,'' for the U.S. Environmental
Protection Agency, California Air Resources Board, and Engine
Manufacturers Association, dated May 20, 2005. A copy of the report
is available in the public docket for this rule and at the EPA/OTAQ
Web site (https://www.epa.gov/otaq/hd-hwy.htm).
---------------------------------------------------------------------------
The test plan also contained the statistically-based algorithms for
calculating the data-driven margins for
[[Page 13444]]
the gaseous pollutants in addition to three different brake-specific
calculation methods for determining emission results (i.e., grams/bhp-
hr) from in-use data. The first two of these methods (Methods 1 and 2
below) are described in 40 CFR 1065.650(a)(1) and (3). The third method
has been suggested by the engine manufacturers and would require prior
approval of the Administrator before it could be used as provided for
in 40 CFR 1065.915(d)(5)(iv). The basic calculation is similar for each
of the three methods and is shown generically in the following
---------------------------------------------------------------------------
equation:
Brake-Specific Emissions = Mass of Pollutant/Work Performed
Where:
Mass of Pollutant = Exhaust Pollutant Concentration x Exhaust
Flow Rate
The three methods differ primarily in how the exhaust flow rate or
the work portion (i.e., brake horsepower-hours) of the calculation is
determined. The methods are also more fully described in the test plan.
After the simulation modeling results for the three calculation
methods were completed, the test plan called for the final set of
accuracy margins (i.e., NMHC, CO, and NOX) to be determined
by the following generalized process. First, identify the maximum
percentage measurement error associated with any of the three
pollutants, i.e., without regard to the pollutant species, for each of
the three calculation methods.\5\ Second, from these three maximum
values, select the method with the lowest or minimum value. Third, and
finally, use the results from that method to determine the measurement
accuracy margins for all of the pollutants.
---------------------------------------------------------------------------
\5\ The percentage error for each pollutant and calculation
method was found by dividing the associated numerical result from
the simulation model by an NTE limit. EPA determined the NTE limit
by multiplying an assumed in-use emission rate from future heavy-
duty diesel engines in the 2010 model year timeframe by the
multiplier that is used to calculate the NTE standard. In this case
the multiplier is 1.5. See 40 CFR 86.007-11(a)(4) for more
information on the NTE multiplier.
---------------------------------------------------------------------------
The cooperative test program for gaseous pollutants as described in
the MOA was completed and a final report issued.\6\ \7\ When the
predicted results from the model simulations were compared to the
mobile emissions laboratory results, only Method 1 could be validated
for NMHC and NOX. Methods 2 and 3 could only be validated
for NMHC. None of the methods validated for CO. While unexpected, the
lack of overall validation for the three methods is not necessarily
surprising given the enormous amount of laboratory-based and on-vehicle
testing, the number of possible errors and the model simulations (i.e.,
thousands of simulation runs), and complexity of the overall
cooperative test program.
---------------------------------------------------------------------------
\6\ See ``Gaseous Emission Measurement Accuracy Margins for
Portable Emission Measurement Systems Used in the Heavy-Duty Diesel
Engine In-Use Testing Program: Revised Final Report,'' U.S.
Environmental Protection Agency, February 2008, EPA report number:
EPA420-R-08-005. A copy of the report is available in the public
docket for this rule and at the EPA/OTAQ Web site (https://
www.epa.gov/otaq/hd-hwy.htm).
\7\ The estimated cost of the gaseous emission measurement
accuracy margin test program is $2.2 million.
---------------------------------------------------------------------------
The emission test data, simulation model, and in-use validation
data were investigated further to determine if there were any errors
that could be remedied to resolve the validation problems. While this
investigation identified some reasons for the lack of validation and
potential additional work that might lead to fully validated results,
none of additional work was judged to be possible under the schedule
for determining the final set of gaseous emission accuracy allowances
as required by the MOA.
In order to ensure that the fully enforceable program for gaseous
emissions started on schedule and to provide an orderly transition for
engines designed and produced during the early years of the program,
the emission measurement accuracy margins from Method 1 were chosen for
use in the fully enforceable program for 2007 through 2009 model year
engine families regardless of the calendar year in which they may be
selected for testing.\8\ Therefore, the accuracy margins based on the
completed test program only apply to the emission results calculated
using Method 1 for these initial three model years.\9\ The resultant
emission measurement accuracy margins are: 0.02 for NMHC; 0.5 for CO;
and 0.45 for NOX.
---------------------------------------------------------------------------
\8\ Method 1 was chosen because it was the only method that was
validated for the two most environmentally important pollutants from
heavy-duty diesel truck engines, i.e., NMHC and NOX.
\9\ The test program results led to no accuracy allowances for
either of the other two calculation methods from 2007 through 2009
model year engine families.
---------------------------------------------------------------------------
At the time Method 1 was selected, it was anticipated that EPA
would continue to develop validated results for the remaining methods,
although it was unknown how long that work might take. It was also
anticipated that if the work was successful, new accuracy margins could
be established through rulemaking, although the above accuracy margins
for Method 1 would be retained for 2007 through 2009 model year engine
families, as described above.
2. Results of Additional Gaseous Measurement Margin Analysis
At the end of the cooperative test program that eventually led to
using the accuracy margins for Method 1 testing for 2007 through 2009
model year engine families, EPA expressed its intent to continue work
to develop more robust gaseous emission measurement accuracy margins,
especially for NOX, as originally anticipated in the test
program plan. We envisioned this work would primarily focus on the
reasons for the lack of validation and potential additional work that
was identified at the end of the original test program, as previously
discussed.
In our follow-on work we corrected an error in the previous test
data, included additional valid engine test data that was not used in
the original work, and eliminated or corrected some error biases or
data outliers in the data set based on engineering judgment. A total of
four different modified data sets or scenarios were constructed for
combinations of the changes described above for each of the three
calculation methods.\10\ After rerunning the simulation model for the
various combinations, we found that each of the four modifications
validated for all three methods and all the gaseous pollutants.
Furthermore, we found that the results from the various methods for
each pollutant were numerically quite close to each other.
---------------------------------------------------------------------------
\10\ See ``Additional Analyses of the Monte Carlo Model
Developed for the Determination of PEMS Measurement Allowances for
Gaseous Emissions Regulated Under the Heavy-Duty Diesel Engine In-
Use Testing Program,'' August 2007, EPA report number: EPA420-R-07-
010. A copy of the report is available in the public docket for this
rule and at the EPA/OTAQ Web site (https://www.epa.gov/otaq/hd-
hwy.htm).
---------------------------------------------------------------------------
In order to select final accuracy margins from the validated
results described above, we evaluated each of the modified data sets to
identify the most appropriate and reasonable revision from an
engineering science perspective (or based on good engineering
practice). Based on this evaluation, we selected the modification
scenario where some data from three test points (emission results at
specific engine speed and load combinations) from one of the test
engines were excluded from the data set. These data reflected
atypically elevated levels of NOX with large and
inconsistent measurement errors. The other modification scenarios,
while justifiable, were judged to represent somewhat more extreme or
difficult to
[[Page 13445]]
defend manipulations of the data on a relative basis.
After selecting the most appropriate modified data set, we
determined the final accuracy margins by applying the ``minimum of the
maximums'' selection criteria from the original test plan to the three
calculation methods. This showed that the largest percentage errors
were associated with NOX and that Method 2 had the lowest
error for that pollutant of the three methods.\11\ Therefore, pursuant
to the results of the original test plan, the subsequent validation
work performed by EPA, and after discussions with the other parties to
the MOA, we are promulgating the final emission measurement accuracy
margins shown in Table 1 for all the calculation methodologies
beginning with 2010 model year engine families. Also as shown in the
table, we are adopting these same numerical values for Methods 2 and 3
for 2007 through 2009 model year engines, at the discretion of the
engine manufacturers, in order to provide a full compliment of
calculation methods and accuracy margins for those engines.
---------------------------------------------------------------------------
\11\ ``Selection of Final Gaseous Emission Measurement Accuracy
Margins for Portable Emission Measurement Systems,'' memorandum from
Richard S. Wilcox, U.S. Environmental Protection Agency, to Docket
No. EPA-HQ-OAR-2004-0072, dated November 4, 2007. A copy of the
document is available in the public docket for this rule.
Table 1.--Final Measurement Accuracy Margins for the Enforceable Gaseous Emissions In-Use Testing Program
----------------------------------------------------------------------------------------------------------------
Accuracy margins (g/bhp-hr)
---------------------------------------------------------
2007-2009 model year engines 2010 and later
Pollutant --------------------------------------- model year
engines
Method 1 only Methods 2 and 3 ------------------
All methods
----------------------------------------------------------------------------------------------------------------
NMHC.................................................. 0.02 0.01 0.01
CO.................................................... 0.5 0.25 0.25
NOX................................................... 0.45 0.15 0.15
----------------------------------------------------------------------------------------------------------------
B. NMHC Plus NOX In-Use Testing Accuracy Margins
The June 2005 final rule that implemented the in-use testing
program addressed accuracy margins for each of the gaseous pollutants
and their associated individual standards, i.e., NMHC, CO, and
NOX. The MOA and subsequent gaseous emissions test program
also focused on identifying the final accuracy margins for these
individual pollutants. In developing the original rule and subsequent
test program, however, we failed to recognize that 2004 through 2006
model year diesel engine families may be certified to a combined
NOX plus NMHC standard under Sec. 86.004-11(a)(1) of the
applicable regulations. Furthermore, under the ``phase-in options'' of
Sec. 86.007-11(g)(1) an engine manufacturer may optionally certify
some of its production in model years 2007 through 2009 to the combined
NOX plus NMHC standard for 2006 model year engines under
Sec. 86.2004-11, rather than the otherwise applicable individual
NOX and NMHC standards. Therefore, we are correcting this
oversight by promulgating in-use testing accuracy margins for 2004-2009
model year engines that may be certified to the combined NOX
plus NMHC standard.
The methodology for determining an accuracy margin for the combined
NOX plus NMHC emission standard is the same as that used to
determine the numerical value of the combined standard itself.
Specifically, the individual NOX and NMHC accuracy margins
are simply added together to provide a single value. Therefore, for
2004-2007 model year engines that may be tested under the gaseous
emission pilot program for the 2006 and 2007 calendar years, the
combined accuracy margin is the sum of the individual NOX
and NMHC values already contained in Sec. 86.1912, or 0.67 g/bhp-hr.
For engines tested in the enforceable program that begins in the 2007
calendar year and applies to 2007 and later model year diesel engines,
the combined NOX plus NMHC accuracy margins, using the
individual values from Table 1, are shown in Table 2.
Table 2.--Final Combined NOX Plus NMHC Measurement Accuracy Margins for
the Enforceable Gaseous Emissions In-Use Testing Program
------------------------------------------------------------------------
Accuracy margins for 2007-2009 model
year engines (g/bhp-hr)
Pollutant ---------------------------------------
Method 1 only Methods 2 and 3
------------------------------------------------------------------------
NOX + NMHC...................... 0.47 0.16
------------------------------------------------------------------------
C. Delaying the Enforceable PM Program From 2008 to 2009
The MOA described in section IV. acknowledged that in order to
promulgate new measurement accuracy margins with adequate lead time to
begin the 2008 enforceable PM program, certain key milestone dates in
the test program had to be achieved. For example, all the parties
agreed that the final accuracy margins and documentation were needed by
November 1, 2007. That meant the final test plan would have to be
agreed upon by September 2006, given the time needed to complete the
testing and analysis. Contingencies for missing the final delivery date
were specified in the MOA and in the June 2005 final rulemaking.\12\
Most relevant to this action was that if the final values and
[[Page 13446]]
documentation were delayed more than three months from November 1,
2007, then the PM pilot program would continue for calendar year 2008
in place of the fully enforceable program for that year.
---------------------------------------------------------------------------
\12\ See 40 CFR 86.1935.
---------------------------------------------------------------------------
Completing the PM test program on schedule required that the
initial work be conducted in parallel with the ongoing gaseous emission
test program using the same contractors and personnel from EPA, CARB,
and the engine manufacturers. Due to unexpected issues in the gaseous
emission test program and the lack of other resources, all work on the
PM test plan and subsequent test program had to be postponed. The end
result of this postponement is that the final accuracy margin for PM
will be delayed by approximately one year. Accordingly, the MOA and in-
use test program regulations require that the first year of the
previously adopted enforceable program (calendar year 2008) be placed
into abeyance and the PM pilot program continued for that year. Hence,
the enforceable PM program will now begin in 2009 calendar year.
In isolation, delaying the start of the enforceable PM program by
one year and continuing the PM pilot program for that year would result
in a three-year pilot, i.e., 2006 through 2008, as described above.
However, as explained in the next section, we also believe it is
appropriate to eliminate the first year of the original two-year pilot
program. As a result, a two-year PM pilot will still occur as
originally envisioned beginning with the 2007 calendar year.
D. Suspending the 2006 PM Pilot Program
The in-use testing program, as originally adopted in June 2005,
included a two-year pilot (i.e., demonstration) program for PM
emissions in calendar years 2006 and 2007. In establishing this
requirement, EPA noted that the onboard measurement of PM emissions was
significantly more challenging than for gaseous emissions, and that
further development of the requisite portable measurement systems would
be needed. We also stated that our technical assessment indicated that
these systems would be available in time to start the in-use testing
program. More specifically with regard to the PM pilot program, we
noted our expectation that engine manufacturers would use ``best
available'' prototype systems that were capable of measuring these
emissions as required. Nonetheless, in recognition of the then
remaining technical uncertainties, we added a provision to the
regulations that would suspend the in-use test program as it applied to
PM measurement if we discovered fundamental technical problems with
portable in-use PM measurement systems that could not be resolvable in
a reasonable time.
In a letter dated January 4, 2007, EMA requested that the first
year of the two-year PM pilot program be held in abeyance.\13\ The
principle reasons were summarized as follows: (1) Suitable portable
measurement systems are not commercially available; (2) fundamental
technical issues remain to be resolved; (3) the joint program to
develop a data-driven PM accuracy margin for these devices has been
delayed at least one year; and (4) the final in-use testing regulation
and the MOA require the one-year delay. The third issue relates to the
delay of the first year of the fully enforceable PM test program from
2008 until 2009 as discussed in the previous section. The last issue
relates to regulatory requirement to delay the PM measurement program
if fundamental technical problems were discovered as described in the
preceding paragraph.
---------------------------------------------------------------------------
\13\ See letter from Timothy A. French, Engine Manufacturers
Association, to Khesha Jennings, U.S. Environmental Protection
Agency, dated January 4, 2007. A copy of the letter is available in
the public docket for this rule.
---------------------------------------------------------------------------
Focusing on the first two points, we reminded EMA at the time that
although some parties may interpret the term ``commercially available''
differently, the original rulemaking clearly stated the expectation
that prototype portable measurement systems would be used in the PM
pilot program if they could accurately and reliably measure PM
emissions. This was acceptable because the pilot is designed for the
engine manufacturers and EPA to gain experience in implementing the in-
use testing program and using the portable measurement systems. Also,
we noted that both EPA and some engine manufacturers had already
purchased prototype portable PM measurement systems meeting these
requirements. Finally, we described how we had successfully used the
same prototype system to measure PM emissions over NTE events while
traveling cross-country in a particulate trap-equipped truck using
ultra-low sulfur diesel fuel.\14\ Therefore, we concluded that
acceptable measurement systems were available and no fundamental,
irresolvable issues had been identified that would justify a delay in
the pilot program. Nonetheless, we invited EMA to further elaborate on
their technical concerns with the currently available measurement
systems.
---------------------------------------------------------------------------
\14\ ``Road Test of an On-board Particulate Matter Mass
Measurement System,'' D. R. Booker, Sensors, Inc., R. A. Giannelli
and J. Hu, U.S. Environmental Protection Agency, March 2007, SAE
paper number 2007-01-1116.
---------------------------------------------------------------------------
In a subsequent letter dated April 11, 2007, EMA more specifically
detailed its technical concerns with currently available portable PM
measurement systems.\15\ Specifically, EMA listed fourteen technical
considerations. These generally can be summarized as follows: (1) The
devices had not been demonstrated as meeting the technical requirements
of EPA's 40 CFR 1065; (2) the engine manufacturers' have no current
experience with the measurement device because the current version is
relatively new, the instrument manufacturer does not offer all the
accessories needed to install and operate the system; (3) mounting the
units on some trucks presents installation issues; (4) the sampling
technology will not work properly with dirtier pre-2007 engines; (5) no
training from the instrument manufacturer was available; and (6) a
number of issues with accuracy and repeatability remain to be resolved.
They also argued that it would be better to take the time now to focus
on developing better portable PM measurement devices and, thereby,
helping to ensure a successful launch of the fully enforceable program
in 2009, especially since we would still have a full two years of the
PM pilot program as originally called for by the regulations.
---------------------------------------------------------------------------
\15\ See letter from Timothy A. French, Engine Manufacturers
Association, to Khesha Jennings, U.S. Environmental Protection
Agency, dated April 11, 2007. A copy of the letter is available in
the public docket for this rule.
---------------------------------------------------------------------------
After carefully considering EMA's more explicit concerns, we
concluded that: (1) A number of the issues were only relevant to the
future fully enforceable program, not the pilot demonstration program;
(2) EPA and EMA could work to resolve some issues such as only testing
existing or prototype lower emitting buses or trucks; and (3) the
remaining items simply did not by themselves reach a level that would
justify delaying the pilot program. At the same time, we agreed with
EMA that it is more important to continue to work cooperatively for a
successful launch of the enforceable PM in-use testing program,
especially since we will still have a two-year pilot. Therefore, at
that point in time, we decided it was in the best interests of all
parties to eliminate the 2006 calendar year pilot program and focus our
collective efforts to improve the current portable PM measurement
systems and conduct the cooperative research and development program
for this pollutant.
[[Page 13447]]
E. Revised Schedules and Testing Flexibilities for the 2005 Through
2009 In-Use Test Programs
The June 2005 final rule that established the heavy-duty in-use
test program stated that EPA would typically select engine families for
testing in June of each calendar year. Further, the regulations allowed
18 months from the time engine families were designated for engine
manufacturers to complete all testing and report the results to EPA.
Subsequent to the final rule, we found that certain adjustments to the
test schedules were necessary in the early years of the program for the
reasons given below. The adjustments for engine family designation and
reporting dates are summarized in Table 3.
Table 3.--Revised Engine Family Designation and Reporting Schedules
----------------------------------------------------------------------------------------------------------------
Designate families Report due
Program -----------------------------------------------------------------------------
Original Revised Original Revised
----------------------------------------------------------------------------------------------------------------
2005 Gaseous Pilot *.............. 06/2005 Unchanged............ 11/2006 11/2007.
2006 Gaseous Pilot................ 06/2006 12/2006.............. 11/2007 11/2008.
2007 Gaseous Enforceable.......... 06/2007 12/2007.............. 11/2008 11/2009.
2007 PM Pilot..................... 06/2007 12/2007.............. 11/2008 05/2010.
2008 Gaseous Enforceable.......... 06/2008 09/2008.............. 11/2009 03/2010.
2008 PM Pilot..................... 06/2008 09/2008.............. 11/2009 09/2010.
2009 Gaseous Enforceable.......... 06/2009 Unchanged............ 11/2010 04/2011.
2009 PM Enforceable............... 06/2009 Unchanged............ 11/2010 04/2011.
2010 Gaseous Enforceable **....... 06/2010 Unchanged............ 11/2011 Unchanged.
2010 PM Enforceable **............ 06/2010 Unchanged............ 11/2011 Unchanged.
----------------------------------------------------------------------------------------------------------------
* The 2005 Gaseous Pilot Program has been completed.
** For illustration only. The 2010 program dates are as originally promulgated.
When the final rule was promulgated, EPA was working with ARB and
the engine manufacturers to create a standardized, electronic reporting
format which precisely specified each of the numerous reporting data
elements and enabled the test results from the portable emission
measurement systems to be reported into EPA's computerized database. We
had envisioned that this work would be completed in a timely manner so
that the 2005 gaseous emissions pilot program could be conducted as
scheduled. However, despite the diligent work of all parties, creating
the electronic reporting guidance for this all new test program proved
more complex and time consuming than expected. By September 2005 it
became obvious that the lack of the reporting guidance document had
become an impediment to efficiently conducting the in-use test program.
As a result, EPA agreed with the engine manufacturers, and ARB
concurred, that the start of the 18-month reporting period should be
delayed until a reporting guidance document was issued.\16\
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\16\ See letter from Merrylin Zaw-Mon, U.S. Environmental
Protection Agency, to John Duerr, Detroit Diesel Corporation, dated
November 15, 2005. A copy of the letter is available in the public
docket for this rule.
---------------------------------------------------------------------------
In late May 2006 the reporting guidance was released and the 18-
month reporting period began in June of that year and ended in November
2007.\17\ To accommodate this delay without unduly compressing or
overlapping the testing in subsequent years, we are delaying engine
family designations, and sometimes extending the reporting period, for
the 2006 through 2008 gaseous emissions testing programs. Specifically
as shown in Table 3, we are delaying engine family designations for
2006 until December of that year and extending the reporting period to
24 months. For 2007, we are similarly delaying engine family
designations and extending the reporting period. Further, we are
shortening the delay in selecting engine families for the 2008 gaseous
emissions enforceable program to four months, i.e., September of that
year, and subsequently returning to the normal 18-month reporting
period. Finally, we are aligning the engine family designation dates
for the 2007 and 2008 PM pilot programs with the revised gaseous
emissions program dates to keep the program start dates the same.
---------------------------------------------------------------------------
\17\ All manufacturers successfully reported the 2005 gaseous
emission test results according to that modified schedule.
---------------------------------------------------------------------------
We have more recently reevaluated the schedules for the in-use PM
test program. Our reassessment was based on the progress that is being
made to develop ``data driven'' emission measurement allowances as part
of the comprehensive research, development, and demonstration program
outlined in the MOA,\18\ as previously described in section IV. The
reassessment was also made in the context that successfully measuring
PM emissions onboard a vehicle and deploying this technology in revenue
service represents the fundamental next step in emission measurement
technology and environmental protection. On balance, we have concluded
that additional time and added flexibility in the early years of the
in-use PM test program is required now to help ensure that this
important programmatic advancement is successful.
---------------------------------------------------------------------------
\18\ See ``Memorandum of Agreement, Program to Develop Emission
Measurement Accuracy Margins for Heavy-Duty In-Use Testing,'' dated
May 2005. A copy of the memorandum is available in the public docket
for this rule and at the EPA/OTAQ Web site (https://www.epa.gov/otaq/
hd-hwy.htm).
---------------------------------------------------------------------------
More specifically, last summer EPA and the other contributors to
the PM accuracy margin development program decided to do some pre-
testing of a PM PEMS prior to initiating the full test program in order
to further demonstrate and refine the test protocol and
instrumentation. This led to some technical changes to the PM PEMS
themselves. It also caused the full accuracy margin development program
to be delayed. At nearly the same time, some engine manufacturers
stated that they would like to use the initial results from the full
test program on the various PM PEMS devices in order to make more
refined purchasing decisions and to include any resulting upgrades to
the instruments. Given the importance of the program and expense
involved, we believe it is reasonable to accommodate the delay in
initiating the full PM accuracy margin development program and to allow
manufacturers to use the initial test results for purchasing decisions.
Therefore, as shown in Table 3, we are adding a total of six months to
the testing period to the 2007 PM pilot program. As with the gaseous
emissions program described above, we are also extending the PM
reporting
[[Page 13448]]
periods for the 2008 pilot and the 2009 enforceable PM programs to
avoid compression effects. Further, we are extending the reporting
period for the 2009 enforceable gaseous emissions program to match the
revised period for the 2009 enforceable PM program to couple and
realign the programs as originally intended. Finally, we want to make
it clear that any month-to-month delay (up to three months) in
initiating the 2009 enforceable PM program, as outlined in the accuracy
margin development MOA \19\ and described in section IV, will have no
effect on the reporting dates described above, i.e., no additional
time.
---------------------------------------------------------------------------
\19\ See ``Memorandum of Agreement, Program to Develop Emission
Measurement Accuracy Margins for Heavy-Duty In-Use Testing,'' dated
May 2005. A copy of the memorandum is available in the public docket
for this rule and at the EPA/OTAQ Web site (https://www.epa.gov/otaq/
hd-hwy.htm).
---------------------------------------------------------------------------
Most recently engine manufacturers have expressed concerns that
procuring and instrumenting test vehicles with PM PEMS could, in some
instances, be more complex and time consuming than for gaseous
emissions testing. For example, they claim that mounting the
instruments and running sampling lines with current generation PM PEMS
might require drilling holes in a truck's cab or creating special
mounting hardware. In such cases, the manufacturers argue that it might
be difficult to obtain vehicles from independent owners as required by
the current regulations. Engine manufacturers have requested that they
be given the flexibility to recruit and test vehicles from their
captive fleets for the 2007 PM pilot program based on these concerns.
In considering the engine manufacturers appeal, we note that the
gaseous emissions enforceable and PM pilot programs for that year would
have to be ``decoupled'' so that the gaseous emissions program would
continue to be conducted according to the applicable testing protocols,
e.g., obtaining vehicles from independent owners and testing them in
normal revenue service.
While we are not convinced that current PM PEMS will cause these
unique challenges, we also can not conclusively rule out some
instrumentation and recruiting issues in the early part of the PM
program. Again, given the importance of successfully launching this
program, EPA is granting the engine manufacturers' request to modify
the PM pilot program test protocols. Therefore, we are allowing
manufacturers to recruit vehicles from their captive fleet and to test
them while being driven by a company employee. However, manufacturers
must ensure that the vehicles are screened, prepared, operated, and
tested in accordance with all other applicable requirements.
Furthermore, the vehicle must be tested by being driven on a route that
reasonably replicates normal, in-use revenue service for that type of
vehicle. The requirements for the enforceable gaseous emissions test
program for 2007 and 2008 are unchanged.
F. Removing the Gaseous Accuracy Test Program From the Regulations
We are taking this opportunity to delete the references in Sec.
86.1935 that pertain to the final report for gaseous emission accuracy
margins and the consequences that would ensue if the report was delayed
beyond certain dates. These provisions are no longer needed because
accuracy margins for gaseous pollutants are being promulgated in this
Direct Final Rule. The revised section, therefore, appropriately
focuses on the ongoing development of accuracy margins for PM
emissions.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO. This Direct Final Rule
merely replaces the interim gaseous emission measurement accuracy
allowances for portable emission measurement systems with final values
and delays the in-use testing implementation dates for the fully
enforceable PM test program as either envisioned or allowed for in the
original final rule. This rule also grants a request from the affected
engine manufacturers for a one year delay in the start of the pilot
testing program for PM. Further, there are no costs associated with
this rule beyond those envisioned in the original rule.
B. Paperwork Reduction Act
This direct final rule does not include any new collection
requirements, as it acts to replace interim gaseous emission
measurement accuracy allowances for portable emission measurement
systems with final values and delays the implementation schedule for
the in-use PM testing program. Therefore, there are no new paperwork
requirements associated with this rule.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this direct final rule.
For purposes of assessing the impacts of this final rule on small
entities, a small entity is defined as: (1) A small business that meets
the definition for business based on SBA size standards at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may conclude that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule.
This direct final rule acts to replace interim gaseous emission
measurement
[[Page 13449]]
accuracy allowances for portable emission measurement systems with
final values and delays the implementation schedule for the in-use PM
testing program. We have, therefore, concluded that today's final rule
will relieve regulatory burden for all small entities and will not have
a significant economic impact on a substantial number of small
entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective, or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why such
an alternative was adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
This rule contains no federal mandates for state, local, or tribal
governments as defined by the provisions of Title II of the UMRA. The
rule imposes no enforceable duties on any of these governmental
entities. Nothing in the rule would significantly or uniquely affect
small governments. EPA has determined that this rule contains no
federal mandates that may result in expenditures of more than $100
million to the private sector in any single year. This direct final
rule acts to replace interim gaseous emission measurement accuracy
allowances for portable emission measurement systems with final values
and delays the implementation schedule for the in-use PM testing
program. The requirements of UMRA, therefore, do not apply to this
action.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the regulation. EPA also may not issue a reg
