[Federal Register Volume 69, Number 118 (Monday, June 21, 2004)]
[Proposed Rules]
[Pages 34326-34335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13930]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 86

[AMS-FRL-7775-7]


Control of Air Pollution From New Motor Vehicles: In-Use Testing 
for Heavy-Duty Diesel Engines and Vehicles

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rule; correction.

-----------------------------------------------------------------------

SUMMARY: The notice of proposed rulemaking concerning air pollution 
control was published in the Federal Register on June 10, 2004 (69 FR 
32803). As published, EPA failed to include the rule text. It is 
provided below in its entirety.

DATES: Comments: Comments must be received on or before August 16, 2004 
(see section IV of the notice of proposed rulemaking at 69 FR 32818 on 
June 10, 2004, for more information about written comments).
    Hearings: We will hold a public hearing on July 15, 2004. The 
hearing will start at 10 a.m. local time. If you want to testify at the 
hearing, notify the contact person listed below at least ten days 
before the hearing. See section IV of the notice of proposed rulemaking 
for more information.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0072, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    3. Mail: Air Docket, Environmental Protection Agency, Mailcode: 
6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention 
Docket ID No. OAR-2004-0072. Also send your comments to: Carol Connell, 
U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, 
Michigan 48130, Attention Docket ID No. OAR-2004-0072.
    4. Hand Delivery: EPA Docket Center, (EPA/DC) EPA West, Room B102, 
1301 Constitution Ave., NW., Washington, DC, Attention Docket ID No. 
OAR-2004-0072. Such deliveries are only accepted during the Docket's 
normal hours of operation from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. 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 http://www.epa.gov/edocket, 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 EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the Federal regulations.gov Web sites are 
``anonymous access'' systems, 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 EDOCKET or 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

[[Page 34327]]

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.
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the Air Docket, EPA/DC, EPA West, Room B102, 1301 Constitution 
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Air Docket is (202) 566-1742.
    Hearings: We will hold a public hearing at the following location: 
U.S. Environmental Protection Agency, 1310 L. Street, NW., Washington, 
DC 20460. Telephone: (202) 343-9540, fax: (202) 343-2840. See section 
IV, ``Public Participation'' in the notice of proposed rulemaking for 
more information on the comment procedure and public hearings.

FOR FURTHER INFORMATION CONTACT: U.S. EPA, Office of Transportation and 
Air Quality, Assessment and Standards Division hotline at (734) 214-
4636 or [email protected], or alternatively Carol Connell (734) 214-4349 
or [email protected].

SUPPLEMENTARY INFORMATION:

Regulated Entities

    This action would affect you if you produce or import new heavy-
duty diesel engines which are intended for use in highway vehicles such 
as trucks and buses, or produce or import such highway vehicles, or 
convert heavy-duty vehicles or heavy-duty engines used in highway 
vehicles to use alternative fuels.
    The following table gives some examples of entities that may have 
to follow the regulations. But because these are only examples, you 
should carefully examine the regulations in 40 CFR part 86. If you have 
questions, call the person listed in the FOR FURTHER INFORMATION 
CONTACT section of this preamble:

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                                                                              Examples of potentially regulated
                Category                  NAICS codes \a\    SIC codes \b\                 entities
----------------------------------------------------------------------------------------------------------------
Industry...............................            336112              3711  Engine and Truck Manufacturers.
                                                   336120
Industry...............................            811112              7533  Commercial Importers of Vehicles
                                                                              and Vehicle Components.
                                                   811198              7549
----------------------------------------------------------------------------------------------------------------
\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.

How Can I Get Copies of This Document and Other Related Information?

    Docket. EPA has established an official public docket for this 
action under Docket ID No. OAR-2004-0072. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing at 
the Air Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 
1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Reading 
Room is (202) 566-1744, and the telephone number for the Air Docket is 
(202) 566-1742.
    Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as Confidential Business Information (CBI) and 
other information whose disclosure is restricted by statute, which is 
not included in the official public docket, will not be available for 
public viewing in EPA's electronic public docket. EPA's policy is that 
copyrighted material will not be placed in EPA's electronic public 
docket but will be available only in printed, paper form in the 
official public docket. To the extent feasible, publicly available 
docket materials will be made available in EPA's electronic public 
docket. When a document is selected from the index list in EPA Dockets, 
the system will identify whether the document is available for viewing 
in EPA's electronic public docket. Although not all docket materials 
may be available electronically, you may still access any of the 
publicly available docket materials through the docket facility 
identified in section IV of the notice of proposed rulemaking.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will

[[Page 34328]]

be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    For additional information about EPA's electronic public docket 
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

List of Subjects in 40 CFR Part 86

    Administrative practice and procedure, Confidential business 
information, Labeling, Motor vehicle pollution, Reporting and 
recordkeeping requirements.

    Dated: June 15, 2004.
Margo Tsirigotis Oge,
Director, Office of Transportation and Air Quality.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as set forth 
below.

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:

    Authority: 42 U.S.C. 7401-7671q.

    2. Section 86.1 is amended by adding paragraph (b)(6) to read as 
follows:


Sec.  86.1  Reference materials.

* * * * *
    (b)* * *
    (6) NIST material. The following table lists material from the 
National Institute of Standards and Technology that we have 
incorporated by reference. The first column lists the number and name 
of the material. The second column lists the sections of this part 
where we reference it. Anyone may purchase copies of these materials 
from the Government Printing Office, Washington, DC 20402 or download 
them from the Internet at http://physics.nist.gov/Pubs/SP811/.

------------------------------------------------------------------------
                                                               Part 86
                  Document number and name                    reference
------------------------------------------------------------------------
NIST Special Publication 811, Guide for the Use of the           86.1901
 International System of Units (SI), 1995 Edition..........
------------------------------------------------------------------------

Subpart N--[Amended]

    3. A new Sec.  86.1375-2007 is added to read as follows:


Sec.  86.1375-2007  Equipment specifications for field testing.

    For field testing conducted pursuant to the requirements of this 
part, including field testing conducted to measure emissions under Not-
To-Exceed test procedures, use the test procedures and equipment 
specified in 40 CFR part 1065.
    4. A new subpart T is added to read as follows:

Subpart T--Manufacturer-Run In-Use Testing Program for Heavy-Duty 
Diesel Engines

Sec.
86.1901 What testing requirements apply to my engines that have gone 
into service?
86.1905 How does this program work?
86.1908 How must I select and screen my in-use engines?
86.1910 How must I prepare and test my in-use engines?
86.1912 How do I determine whether an engine meets the vehicle-pass 
criteria?
86.1915 What are the requirements for Phase 1 and Phase 2 testing?
86.1917 How does in-use testing under this subpart relate to the 
emission-related warranty in Section 207(a)(1) of the Clean Air Act?
86.1920 What in-use testing information must I report to EPA?
86.1925 What records must I keep?
86.1930 What special provisions apply in 2005 and 2006?
Appendix I to Subpart T--Sample Graphical Summary of NTE Emission 
Results


Sec.  86.1901  What testing requirements apply to my engines that have 
gone into service?

    (a) If you manufacture diesel heavy-duty engines above 8500 lbs. 
GVWR that are subject to engine-based exhaust emission standards under 
this part, you must test them starting in calendar year 2005 as 
described in this subpart. See Sec.  86.1930 for special provisions 
that apply to engines manufactured before model year 2007.
    (b) We may void your certificate of conformity for an engine family 
if you do not meet your obligations under this subpart. We may also 
void individual tests and require you to retest those vehicles or take 
other appropriate measures in instances where you have not performed 
the testing in accordance with the requirements described in this 
subpart.
    (c) Independent of your responsibility to test in-use engines under 
this subpart, we may choose to do our own testing of your in-use 
engines.
    (d) In this subpart, the term ``you'' refers to the certificate-
holder for any engines subject to the requirements of this subpart.
    (e) In this subpart, round means to round numbers according to NIST 
Special Publication 811 (incorporated by reference in Sec.  86.1).


Sec.  86.1905  How does this program work?

    (a) You must test in-use engines from the families we select. We 
may select the following number of engine families for testing, except 
as specified in paragraph (b) of this section:
    (1) We may select up to 25 percent of your engine families in any 
calendar year, calculated by dividing the number of engine families you 
certified in the model year corresponding to the calendar year by four 
and rounding to the nearest whole number. We will consider only engine 
families with annual U.S.-directed production volumes above 1,500 units 
in calculating the number of engine families subject to testing each 
calendar year under the annual 25 percent engine family limit. In 
addition, for model year 2007 through 2009, identical engine families 
that are split into two families under Sec.  86.007-15(m)(9) will count 
as only one engine family. If you have only three or fewer families 
that each exceed an annual U.S.-directed production volume of 1,500 
units, or if you have no engine families above this limit, we may 
select one engine family per calendar year for testing.
    (2) Over any four-year period, we will not select more than the 
average number of engine families that you have certified over that 
four-year period (the model year when the selection is made and the 
preceding three model years), based on rounding the average value to 
the nearest whole number.
    (b) If there is clear evidence of a nonconformity with regard to an 
engine family, we may select that engine family without counting it as 
a selected engine family under paragraph (a) of this section. We will 
consult with you in reaching a conclusion whether clear evidence of a 
nonconformity exists for any engine family. In general, there is clear 
evidence of a nonconformity regarding an engine family under this 
subpart in any of the following cases:
    (1) The engine family is a carry-over from an engine family you 
tested under this subpart and was subsequently remedied based at least 
in part on the Phase 1 or Phase 2 testing outcomes described in Sec.  
86.1915.
    (2) The engine family is a carry-over from an engine family that 
was remedied based on an EPA in-use testing program.
    (c) We may select any individual engine family for testing, 
regardless of its production volume, as long as we do not select more 
than the number of engine families described in paragraph (a) of this 
section. We may select an engine family from the current model year or 
any previous model year, except that beginning in calendar year 2007, 
we will not select any engine families from model years before 2007.
    (d) You must complete all the required testing and reporting under

[[Page 34329]]

this subpart within 18 months after we direct you to test a particular 
engine family. We will typically select engine families for testing and 
notify you in writing by June 1 of the applicable calendar year. You 
may ask for up to six months longer to complete Phase 2 testing if you 
can justify the need for more time.
    (e) If you make a good-faith effort to access enough test vehicles 
to complete Phase 1 or Phase 2 testing requirements under this subpart 
for an engine family, but are unable to do so, you must ask us either 
to modify the testing requirements for the selected engine family or, 
in the case of Phase 1 testing, to select a different engine family.
    (f) After you complete the in-use testing requirements for an 
engine family that we selected for testing in a given calendar year, we 
may select that same family in a later year to evaluate the engine 
family's compliance closer to the end of its useful life. This would 
count as an additional engine-family selection under paragraph (a) of 
this section, except as described in paragraph (b) of this section.
    (g) For any communication related to this subpart, contact the 
Engine Programs Group Manager (6405-J), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.


Sec.  86.1908  How must I select and screen my in-use engines?

    (a) Once we direct you to do testing under this subpart, you must 
make arrangements to select test vehicles and engines that meet the 
following criteria:
    (1) The engines must be representative of the engine family.
    (2) The usage of the vehicles must be representative of typical 
usage for the vehicles' particular application.
    (3) The vehicles come from at least two independent sources.
    (4) The engines have been properly maintained and used.
    (5) The engines have not been tampered with, misfueled, rebuilt or 
undergone major repair that could be expected to affect emissions.
    (6) The vehicles are likely to operate for at least three hours 
(excluding idle) over a complete shift-day, as described in Sec.  
86.1910(g).
    (7) The vehicles have not exceeded the applicable useful life, in 
miles or years (see subpart A of this part); you may otherwise not 
exclude engines from testing based on their age or mileage.
    (b) You must send us a general plan describing how you will procure 
and select vehicles for in-use testing. Your general plan should apply 
to any engine family that could be selected for testing under this 
subpart. Your plan should include the range of activities you intend to 
use to identify, locate, and screen vehicles for in-use testing. Do not 
start testing until we approve your general plan. Notify us promptly in 
writing if you deviate from the general plan we have approved. 
Deviations are deemed accepted if we either notify you of our 
acceptance or if we do not contact you within 21 calendar days of 
receipt to disapprove or express concerns with your deviation. Do all 
the following things in your general plan:
    (1) Describe how you will recruit vehicles and explain whether this 
may result in an emphasis on testing engines with a particular type of 
driving route or from a particular geographic area. Describe any 
preference for a particular driving route or geographic area. Treat any 
situation where there is an actual emphasis on a particular engine 
configuration, application, or service class as a deviation from your 
general plan. If you will rely on a business relationship to recruit 
vehicles--such as with vehicle manufacturers or fleet operators--
identify these other companies and describe how you will work together 
to recruit vehicles.
    (2) Describe the methods you will use to gather available 
information about whether vehicles and engines meet the acceptance 
criteria described in paragraph (a) of this section. Describe any 
quantitative thresholds you will use to accept individual vehicles and 
engines for testing.
    (c) You must keep any records of a vehicle's maintenance and use 
history you obtain from the owner or operator, as required by Sec.  
86.1925. You must report the engine's maintenance and use history and 
information related to the OBD system, as described in Sec.  86.1920. 
The presence of an OBD trouble code or an illuminated MIL is not 
automatic grounds for rejecting a candidate vehicle under this subpart.
    (d) You must notify us before rejecting a candidate vehicle for 
reasons other than failing to meet the acceptance criteria in paragraph 
(a) of this section and the quantitative thresholds in paragraph (b)(2) 
of this section. A candidate vehicle is any prospective vehicle you 
have identified to potentially fulfill your testing requirements under 
this subpart. Include your reasons for rejecting each vehicle. We may 
allow you to replace the rejected vehicle with another candidate 
vehicle to meet your testing requirements for the specific engine 
family.
    (e) You must report when, how, and why you reject candidate 
vehicles, as described in Sec.  86.1920.


Sec.  86.1910  How must I prepare and test my in-use engines?

    (a) You must limit maintenance to what is in the owners manual for 
engines with that amount of service and age. For anything we consider 
an adjustable parameter (see Sec.  86.094-21(b)(1)(ii) and Sec.  
86.094-22(e)), you may adjust that parameter only if it is outside of 
its adjustable range. You must then set the adjustable parameter to the 
mid-point of its adjustable range, unless we approve your request to do 
otherwise. You must receive permission from us before adjusting 
anything not considered to be an adjustable parameter. You must keep 
records of all maintenance and adjustments, as required by Sec.  
86.1925. You must send us these records, as described in Sec.  
86.1920(a)(3)(x), unless we instruct you not to send them.
    (b) The presence of an OBD trouble code or an illuminated MIL is 
not automatic grounds for eliminating a vehicle that has been accepted 
for in-use testing under this subpart. This includes an activated OBD 
trouble code or illuminated MIL that you find when you first observe 
the vehicle. The presence of an OBD trouble code or an illuminated MIL 
is also not grounds for automatically aborting or voiding a test.
    (1) You must address activated OBD trouble codes and illuminated 
MILs that occur before testing as follows:
    (i) You may continue to prepare and test the vehicle without 
remedying the cause of the OBD code or MIL illumination.
    (ii) If you wish to remedy the cause of an OBD trouble code or 
illuminated MIL before testing, you must first get our approval.
    (iii) We will generally allow you to remedy problems that cause OBD 
trouble codes or MIL illumination if the problem is related to 
scheduled maintenance that you specify in the owner's manual. If we 
allow you to remedy these problems, you may also clear the trouble 
codes and turn off the MIL.
    (iv) We will generally not allow you to remedy problems that cause 
OBD trouble codes or MIL illumination if the problem is related to a 
malfunctioning component, an assembly within the emission-control 
system, or an unknown cause. In these cases, you may also not clear the 
trouble codes or turn off the MIL.
    (2) You must complete any test in which an activated OBD trouble 
code or illuminated MIL is discovered after emission testing has 
started.
    (3) If we do not allow you to remedy problems that cause OBD 
trouble codes or MIL illumination before testing, you

[[Page 34330]]

may remedy the problems after testing, clear the trouble codes and turn 
off the MIL, and retest the vehicle. If you retest an engine under this 
paragraph (b)(3), we will consider the results of both tests, as 
follows:
    (i) We will use the initial test results conducted before remedying 
the cause of the OBD code or MIL illumination to determine whether the 
vehicle meets the vehicle-pass criteria described in Sec.  86.1912.
    (ii) We will consider the results of the retest conducted after 
remedying the cause of the OBD code or MIL illumination in determining 
an appropriate course of action to address the possible outcomes 
described in Sec.  86.1915(b)(2) or Sec.  86.1915(b)(3).
    (c) You must test the selected engines while they remain installed 
in the vehicle. Use portable emission-sampling equipment and field-
testing procedures referenced in Sec.  86.1375 and diesel fuel 
specified in Sec.  86.1313 for the applicable model year. Measure 
emissions of THC, CO, NOX, PM, O2, and 
CO2.
    (d) For Phase 1 testing, you must test the engine under conditions 
reasonably expected to be encountered during normal vehicle operation 
and use consistent with the general NTE requirements described in Sec.  
86.1370-2007(a). For the purposes of this subpart, normal operation and 
use would generally include consideration of the vehicle's normal 
routes and loads (including auxiliary loads such as air conditioning in 
the cab), normal ambient conditions, and the normal driver.
    (e) For Phase 2 testing, we may give specific directions, as 
described in Sec.  86.1915(c)(2).
    (f) Once an engine is set up for testing, test the engine for at 
least one shift-day. To complete a shift-day's worth of testing, start 
sampling at the beginning of a shift and continue sampling for the 
whole shift. A shift-day is the period of a normal workday for an 
individual employee. If the first shift-day of testing does not involve 
at least 3 hours of accumulated non-idle operation, repeat the testing 
for a second shift-day. If the second shift-day of testing also does 
not result in least 3 hours of accumulated non-idle operation, you may 
choose whether or not to continue testing with that vehicle. If after 2 
shift-days you discontinue testing before accumulating 3 hours of non-
idle operation, evaluate the valid NTE samples as described in Sec.  
86.1912 and include the data in the reporting and recordkeeping 
requirements specified in Sec. Sec.  86.1920 and 1925. Count the engine 
toward meeting your testing requirements under this subpart and use the 
data for deciding whether additional engines must be tested under the 
applicable Phase 1 or Phase 2 test plan.
    (g) You may count a vehicle as meeting the vehicle-pass criteria 
described in Sec.  86.1912 if two shift-days of testing does not 
generate a single valid NTE sampling event, as described in Sec.  
86.1912(c). Count the engine towards meeting your testing requirements 
under this subpart.
    (h) You may ask us to waive measurement of particular pollutants if 
you can show that in-use testing for such pollutants is not necessary.


Sec.  86.1912  How do I determine whether an engine meets the vehicle-
pass criteria?

    In general, the average emissions for each regulated pollutant must 
remain at or below the NTE threshold in paragraph (a) of this section 
for at least 90 percent of the valid NTE sampling events, as defined in 
paragraph (b) of this section. For 2007 through 2009 model year 
engines, the average emissions from every NTE sampling event must also 
remain below the NTE thresholds in paragraph (f)(2) of this section. 
Perform the following steps to determine whether an engine meets the 
vehicle-pass criteria:
    (a) Determine the NTE threshold for each pollutant subject to an 
NTE standard by adding all three of the following terms and rounding 
the result to the same number of decimal places as the applicable NTE 
standard:
    (1) The applicable NTE standard.
    (2) The in-use compliance testing margin specified in Sec.  86.007-
11(h), if any.
    (3) An accuracy margin for portable in-use equipment equal to 0.05 
times the sum of the terms in paragraphs (a)(1) and (2) of this 
section.
    (b) For the purposes of this subpart, a valid NTE sampling event 
consists of at least 30 seconds of continuous operation in the NTE 
control area. An NTE event begins when the engine starts to operate in 
the NTE control area and continues as long as engine operation remains 
in this area (see Sec.  86.1370). When determining a valid NTE sampling 
event, exclude all engine operation in approved NTE carve-outs under 
Sec.  86.1370-2007(b)(6) and any approved NTE deficiencies under Sec.  
86.007(a)(4)(iv). Exclude any portion of a sampling event that would 
otherwise exceed the 5.0 percent limit for the time-weighted carve-out 
defined in Sec.  86.1370-2007(b)(7). For EGR-equipped engines, exclude 
any operation that occurs during the cold-temperature operation defined 
by the equations in Sec.  86.1370-2007(f)(1).
    (c) Calculate the average emission level for each pollutant over 
each valid NTE sampling event (Ei\ave\ in g/bhp-hr) by dividing the 
mass of emissions (grams) by the work done during that period of 
operation (brake horsepower-hour). Round the resulting value to the 
same number of decimal places as the applicable NTE threshold. 
Calculate the average emission level as follows:
[GRAPHIC] [TIFF OMITTED] TP21JN04.010


Where:

Ej = an individual emissions measurement at measurement interval j 
within sampling event I (g),
wj = an individual measurement of work output (bhp-hr) at measurement 
interval j within sampling event i, and
t = the duration of the NTE sampling event I (sec).

    (d) Calculate a time-weighted vehicle-pass ratio 
(Rpass). To do this, first sum the time from each valid NTE 
sampling event whose average emission level is at or below the NTE 
threshold for any pollutant, then divide this value by the sum of the 
engine operating time from all valid NTE samples. Round the resulting 
vehicle-pass ratio to two decimal places.
    (1) Calculate the time-weighted vehicle-pass ratio as follows:
    [GRAPHIC] [TIFF OMITTED] TP21JN04.011
    

Where:

npass = the number of sampling events for which the average 
emission level is at or below the NTE threshold, and
ntotal = the total number of valid sampling events.

    (2) For both the numerator and the denominator of the vehicle-pass 
ratio, use the smallest of the following values for determining the 
duration of any NTE sampling event:
    (i) The measured time of operation in the NTE control area for that 
NTE sampling event.
    (ii) 600 seconds.
    (iii) 10 times the length of the shortest valid NTE sample for all 
testing with that engine.
    (e) The following example illustrates how to select the duration of 
NTE

[[Page 34331]]

sampling events for calculations, as described in paragraph (d) of this 
section:

----------------------------------------------------------------------------------------------------------------
                                                                                                  Duration  used
                                                Duration of                                             in
                 NTE  sample                    NTE sample          Duration limit applied?        calculations
                                                 (seconds)                                           (seconds)
----------------------------------------------------------------------------------------------------------------
1...........................................              45  No................................              45
2...........................................             168  No................................             168
3...........................................             605  Yes. Use 10 times shortest valid               450
                                                               NTE.
4...........................................             490  Yes. Use 10 times shortest valid               450
                                                               NTE.
5...........................................              65  No................................              65
----------------------------------------------------------------------------------------------------------------

    (f) Engines meet the vehicle-pass criteria under this section if 
they meet both of the following criteria:
    (1) The vehicle-pass ratio calculated according to paragraph (d) of 
this section must be at least 0.90.
    (2) For model year 2007 through 2009 engines, emission levels from 
all valid NTE sampling events must be less than 2.0 times the NTE 
thresholds calculated according to paragraph (b) of this section for 
all pollutants, except that engines certified to a NOX FEL 
at or below 0.50 g/bhp-hr may meet the vehicle-pass criteria for 
NOX if measured NOX emissions from all valid NTE 
samples are less than either 2.0 times the NTE threshold for 
NOX or 2.0 g/bhp-hr.


Sec.  86.1915  What are the requirements for Phase 1 and Phase 2 
testing?

    For all selected engine families, you must do the following:
    (a) To determine the number of engines you must test from each 
selected engine family under Phase 1 testing, use the following 
criteria:
    (1) Start by measuring emissions from five engines using the 
procedures described in Sec.  86.1375. If all five engines comply fully 
with the vehicle-pass criteria in Sec.  86.1912 for all pollutants, you 
may stop testing. This completes your testing requirements under this 
subpart for the applicable calendar year for that engine family.
    (2) If one of the engines tested under paragraph (a)(1) of this 
section fails to comply fully with the vehicle-pass criteria in Sec.  
86.1912 for one or more pollutants, test one more engine. If this 
additional engine complies fully with the vehicle-pass criteria in 
Sec.  86.1912, you may stop testing. This completes your testing 
requirements under this subpart for the applicable calendar year for 
that engine family.
    (3) If your testing results under paragraphs (a)(1) and (2) of this 
section do not satisfy the criteria for completing your testing 
requirements under those paragraphs, test four additional engines so 
you have tested a total of ten engines.
    (b) For situations where a total of ten engines must be tested 
under paragraph (a)(3) of this section, the results of Phase 1 testing 
lead to the following outcomes:
    (1) If at least eight of the ten engines comply fully with the 
vehicle-pass criteria in Sec.  86.1912 for all pollutants, you may stop 
testing. This completes your testing requirements under this subpart 
for the applicable calendar year for that engine family.
    (2) If six or seven vehicles from the Phase 1 sample of test 
vehicles comply fully with the vehicle-pass criteria in Sec.  86.1912 
for all pollutants, then you must engage in follow-up discussions with 
us to determine whether any further testing (including Phase 2 
testing), data submissions, or other actions may be warranted.
    (3) If fewer than six of the ten engines tested under paragraph (a) 
of this section comply fully with the vehicle-pass criteria in Sec.  
86.1912 for all pollutants, we may require you to initiate Phase 2 
testing, as described in paragraph (c) of this section.
    (4) You may under any circumstances elect to conduct Phase 2 
testing following the completion of Phase 1 testing. All the provisions 
of paragraph (c) of this section apply to this Phase 2 testing.
    (c) If you perform Phase 2 testing for any reason, test your 
engines as follows:
    (1) You must test ten engines using the test procedures described 
in Sec.  86.1375-2007, unless we require you to test fewer vehicles.
    (2) We may give you any of the following additional directions in 
selecting and testing engines:
    (i) We may require you to select a certain subset of your engine 
family. This may include, for example, engines within a specific power 
range, engines used in particular applications, or engines installed in 
vehicles from a particular manufacturer.
    (ii) We may direct you to test engines in a way that simulates the 
type of driving and ambient conditions associated with high emissions 
experienced during Phase 1 testing.
    (iii) We may direct you to test engines in a specific state or any 
number of contiguous states.
    (iv) We may direct you to select engines from the same sources used 
for previous testing, or from different sources.
    (v) We may require that you complete your testing and reporting 
under Phase 2 within a certain period. This period may not be shorter 
than three months and must allow a reasonable amount of time to 
identify and test enough vehicles.


Sec.  86.1917  How does in-use testing under this subpart relate to the 
emission-related warranty in section 207(a)(1) of the Clean Air Act?

    (a) An exceedance of the NTE found through the in-use testing 
program under this subpart is not by itself sufficient to show a breach 
of warranty under Clean Air Act section 207(a)(1) (42 U.S.C. 
7541(a)(1)). A breach of warranty would also require one of the 
following things:
    (1) That, at the time of sale, the engine or vehicle was designed, 
built, and equipped in a manner that does not conform in all material 
respects reasonably related to emission controls to the engine as 
described in the application for certification and covered by the 
certificate; or
    (2) A defect in materials or workmanship of a component causes the 
vehicle or engine to fail to conform to the applicable regulations for 
its useful life.
    (b) To the extent that in-use NTE testing does not reveal such a 
material deficiency at the time of sale in the design or manufacture of 
an engine compared with the certified engine, or a defect in the 
materials and workmanship of a component or part, test results showing 
an exceedence of the NTE by itself would not show a breach of the 
warranty under 42 U.S.C. 7541(a)(1).


Sec.  86.1920  What in-use testing information must I report to EPA?

    (a) Within 30 days after the end of each calendar quarter, send us 
reports

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containing the test data from each engine for which testing was 
completed during the calendar quarter. Alternatively, you may 
separately send us the test data within 30 days after you complete 
testing for an engine. Once you send us information under this section, 
you need not send that information again in later reports. Prepare your 
test reports as follows:
    (1) For each engine family, describe how you recruited vehicles. 
Describe how you used any criteria or thresholds to narrow your search 
or to screen individual vehicles.
    (2) Include a summary of the candidate vehicles you have rejected 
and the reasons you rejected them, whether you base the rejection on 
the criteria in Sec.  86.1908(a) or anything else.
    (3) For the test vehicle, include the following background 
information:
    (i) The EPA engine-family designation, and the engine's model 
number, total displacement, and power rating.
    (ii) The applicable test phase (Phase 1 or Phase 2).
    (iii) The date EPA selected the engine family for testing.
    (iv) The vehicle's make and model and the year it was built.
    (v) The vehicle's type or application (such as delivery, line haul, 
or dump truck). Also, identify the type of trailer, if applicable.
    (vi) The vehicle owner's name, address, phone number, and e-mail 
address.
    (vii) The vehicle's maintenance and use history. Compare this 
information with the criteria you establish in your test plan under 
Sec.  86.1908(b).
    (viii) The known status history of the vehicle's OBD system and any 
actions the owner or operator took to address OBD trouble codes or MIL 
illumination over the vehicle's lifetime.
    (ix) Any OBD codes or MIL illumination that occur after you accept 
the vehicle for in-use testing under this subpart.
    (x) Any steps you take to maintain, adjust, modify, or repair the 
vehicle or its engine to prepare for testing, including actions to 
address OBD trouble codes or MIL illumination.
    (4) For each test, include the following data and measurements:
    (i) The date and time of testing, and the test number.
    (ii) Shift-days of testing (see Sec.  86.1910 (g)), duration of 
testing, and the total hours of non-idle operation.
    (iii) Route and location of testing. You may base this description 
on the output from a global-positioning system.
    (iv) The steps you took to ensure that vehicle operation during 
testing was consistent with normal operation and use, as described in 
Sec.  86.1910(e).
    (v) Fuel specifications, if available.
    (vi) The vehicle's mileage at the start of the test. Include the 
engine's total lifetime hours of operation, if available.
    (vii) Ambient temperature, dewpoint, and barometric pressure at the 
start and finish of each valid NTE event.
    (viii) The number of valid NTE events (see Sec.  86.1912(c)), and 
the percent of measured operating time in the NTE zone (both for valid 
NTE events and for instantaneous excursions).
    (ix) Average emissions for each pollutant over each valid NTE 
event. See Appendix I of this subpart for an example of graphically 
summarizing NTE emission results.
    (x) Exhaust-flow measurements.
    (xi) Vehicle-pass ratio (see Sec.  86.1912(d)).
    (xii) Recorded one-hertz test data for all the parameters specified 
in 40 CFR part 1065, subpart J, including any other relevant parameters 
electronically sensed, measured, calculated, or otherwise stored by the 
engine's onboard computer. This also includes any parameters used to 
modulate the emission-control system.
    (5) For each engine family, identify the applicable requirements, 
as follows:
    (i) Identify the applicable NTE thresholds.
    (ii) Identify the approved NTE carve-outs under Sec.  86.1370-
2007(b)(6) and Sec.  86.1370-2007(b)(7).
    (iii) Identify any approved NTE deficiencies under Sec.  
86.007(a)(4)(iv).
    (6) Include the following summary information after you complete 
testing with the engine:
    (i) State whether the engine meets the vehicle-pass criteria in 
Sec.  86.1912(f).
    (ii) Identify how many engines you have tested from the applicable 
engine family and how many engines still need to be tested.
    (iii) Identify how many engines from an engine family have passed 
the vehicle-pass criteria and the number that have failed the vehicle-
pass criteria (see Sec.  86.1912(f)).
    (iv) If possible, state the outcome of Phase 1 testing for the 
engine family based on the criteria in Sec.  86.1915(b).
    (b) In your reports under this section, you must do all the 
following:
    (1) Include results from all emission testing, including incomplete 
tests, invalid tests, and additional tests you voluntarily conduct 
under Sec.  86.1915(b)(2).
    (2) Include results of testing or evaluations designed to determine 
why a vehicle failed the vehicle-pass criteria in Sec.  86.1912.
    (3) Describe any instances in which the OBD system illuminated the 
MIL or set trouble codes. Also describe any approved actions taken to 
address the trouble codes or MIL.
    (4) Describe the reason for invalidating, voiding, or otherwise not 
completing tests. Also describe the purpose of any diagnostic 
procedures or additional tests you voluntarily conduct.
    (c) We may ask you to send us less information in your reports 
under this section.
    (d) Send us electronic reports at [email protected] using an approved 
information format. If you want to use a different format, send us a 
written request with justification.
    (e) We may require you to send us more information to evaluate 
whether your engine family meets the requirements of this part.


Sec.  86.1925  What records must I keep?

    (a) Organize and maintain your records as described in this 
section. We may review your records at any time, so it is important to 
keep required information readily available.
    (b) Keep the following paper or electronic records of your in-use 
testing for five years after you complete all the testing required for 
an engine family:
    (1) Keep a copy of testing plans described in Sec.  86.1908.
    (2) Keep a copy of the reports described in Sec.  86.1920.
    (3) Keep any additional records, including forms you create, 
related to any of the following:
    (i) The procurement and vehicle-selection process described in 
Sec.  86.1908.
    (ii) Pre-test maintenance and adjustments to the engine performed 
under Sec.  86.1910.
    (iii) Evaluations to determine why a vehicle failed the vehicle-
pass criteria described in Sec.  86.1912.
    (4) Keep a copy of the relevant calibration results required by 40 
CFR part 1065.


Sec.  86.1930  What special provisions apply in 2005 and 2006?

    For calendar year 2005 and 2006, we may direct you to test engines 
under this subpart. In this interim period, all the provisions of this 
subpart apply, with the following exceptions:
    (a) We will not direct you to do the Phase 2 testing in Sec.  
86.1915(c), regardless of measured emission levels.
    (b) Engines tested under this subpart must use diesel fuel 
specified in Sec.  86.1313-2004.
    (c) For purposes of calculating the NTE thresholds under Sec.  
86.1912(a), determine the applicable NTE standards as follows:
    (1) Any numerical NTE requirements specified in the terms of any 
consent

[[Page 34333]]

decree that apply to the engine family under this subpart.
    (2) If a numerical NTE requirement is not specified in a consent 
decree for the engine family, the NTE standards are 1.25 times the 
applicable FELs or the applicable emission standards specified in Sec.  
86.004-11(a)(1) or Sec.  86.098-11(a)(1).

Appendix I to Subpart T--Sample Graphical Summary of NTE Emission 
Results

    The following figure shows an example of a graphical summary of 
NTE emission results:
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[FR Doc. 04-13930 Filed 6-18-04; 8:45 am]
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