[Federal Register Volume 69, Number 124 (Tuesday, June 29, 2004)]
[Proposed Rules]
[Pages 39276-39289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11294]



[[Page 39275]]

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

Part III





Environmental Protection Agency





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



40 CFR Parts 92 and 94



Control of Emissions of Air Pollution From New Locomotive Engines and 
New Marine Compression-Ignition Engines Less than 30 Liters per 
Cylinder; Proposed Rule

  Federal Register / Vol. 69, No. 124 / Tuesday, June 29, 2004 / 
Proposed Rules  

[[Page 39276]]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 92 and 94

[OAR-2003-0190; FRL-7662-8]
RIN 2060-AM06


Control of Emissions of Air Pollution From New Locomotive Engines 
and New Marine Compression-Ignition Engines Less Than 30 Liters per 
Cylinder

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advance notice of proposed rulemaking.

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

SUMMARY: EPA is issuing this Advance Notice of Proposed Rulemaking 
(ANPRM) to invite comment from all interested parties on our plan to 
propose new emission standards and other related provisions for new 
compression-ignition marine engines with per cylinder displacement less 
than 30 liters and locomotive engines. We are considering standards 
modeled after our 2007/2010 highway and Tier 4 nonroad diesel engine 
programs, with an emphasis on achieving large reductions in emissions 
of particulate matter (PM) and air toxics as early as possible through 
the use of advanced emission control technology starting as early as 
2011. This technology, based on high-efficiency catalytic 
aftertreatment, is enabled by the availability of clean diesel fuel 
with sulfur content capped at 15 parts per million. This fuel is 
already being produced in some U.S. markets, and its availability is 
expected to become widespread in coming years in response to EPA 
regulations that require it for an increasingly larger portion of the 
overall diesel fuel pool, starting with highway fuel in 2006. We are 
well aware that migrating advanced control technologies to locomotives 
and marine diesel engines would bring with it a unique set of 
challenges, but we are hopeful that these can be resolved in a 
collaborative manner as was done in our highway and nonroad diesel 
rulemakings.
    A program like the one under consideration could result in 
substantial benefits to public health and welfare through significant 
reductions in emissions of oxides of nitrogen (NOX) and 
particulate matter (PM), as well as hydrocarbons (HC) and air toxics. 
These pollutants contribute to health problems that include premature 
mortality, aggravation of respiratory and cardiovascular disease, 
aggravation of existing asthma, acute respiratory symptoms, chronic 
bronchitis, and decreased lung function. We believe that diesel exhaust 
is likely to be carcinogenic to humans by inhalation. Locomotive and 
marine diesel emissions reductions would particularly benefit those who 
live, work or recreate in and along our nation's coastal areas, rivers, 
ports, and rail lines. Such reductions would also have beneficial 
impacts on visibility impairment and regional haze. We received a 
substantial number of comments from state and local governments 
following our proposal last year to set new controls for nonroad diesel 
emissions, pressing the Agency to adopt similar controls for locomotive 
and marine diesel engines as quickly as possible.

DATES: Send written comments on this advance notice of proposed 
rulemaking by August 30, 2004. See ADDRESSES, below, for more 
information about written comments. There will also be opportunity for 
oral and written comment when we publish our Notice of Proposed 
Rulemaking for this action.
    We expect to publish a Notice of Proposed Rulemaking for this rule 
by mid-2005 and a Final Rule by mid-2006.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2003-
0190, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     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.
     E-mail: [email protected]. Specify docket number OAR-
2003-0190 in the body of the message.
     Fax: (202) 260-4400.
     Mail: Environmental Protection Agency, Air Docket, 
Mailcode 6102T, 1200 Pennsylvania Ave., NW, Washington, DC 20460. 
Please include a total of 2 two copies.
     Hand Delivery: Environmental Protection Agency, Air 
Docket, Mailcode 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460. 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. OAR-2003-0190. 
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 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 EDOCKET on-line or see the Federal Register of May 31, 
2002 (67 FR 38102). For additional instructions on submitting comments, 
go to the SUPPLEMENTARY INFORMATION section of this document.
    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 EPA 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.

[[Page 39277]]


FOR FURTHER INFORMATION CONTACT: Carol Connell, AANC, U.S. EPA, 
National Vehicle and Fuels Emission Laboratory, 2565 Plymouth Road, Ann 
Arbor, MI 48105, (734) 214-4349, Fax: (734)214-4816, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

Locomotive
    Entities potentially regulated by this action are those which 
manufacture, remanufacture and/or import locomotives and/or locomotive 
engines; and those which own and operate locomotives. Regulated 
categories and entities include:

------------------------------------------------------------------------
                                                         Examples of
          Category                NAICS code a      potentially affected
                                                          entities
------------------------------------------------------------------------
Industry....................  333618, 336510......  Manufacturers,
                                                     remanufacturers and
                                                     importers of
                                                     locomotives and
                                                     locomotive engines.
Industry....................  482110, 482111,       Railroad owners and
                               482112.               operators.
Industry....................  488210..............  Engine repair and
                                                     maintenance.
------------------------------------------------------------------------
a North American Industry Classification System (NAICS).

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your company is regulated by this action, you should carefully examine 
the applicability criteria in 40 CFR 92.1, 92.801, 92.901 and 92.1001, 
as well as 40 CFR 85.1601 and 89.1. If you have questions regarding the 
applicability of this regulation to a particular entity, consult the 
person listed in the preceding FOR FURTHER INFORMATION CONTACT section.
Marine
    This proposed action would affect companies and persons that 
manufacture, sell, or import into the United States new marine 
compression-ignition engines; companies and persons that make vessels 
that use such engines; and the owners/operators of such vessels. 
Further requirements apply to companies and persons that rebuild or 
maintain these engines. Affected categories and entities include:

----------------------------------------------------------------------------------------------------------------
              Category                      NAICS code \a\           Examples of potentially affected entities
----------------------------------------------------------------------------------------------------------------
Industry...........................  333618.....................  Manufacturers of new marine diesel engines.
Industry...........................  33661 and 346611...........  Ship and boat building; ship building and
                                                                   repairing.
Industry...........................  811310.....................  Engine repair and maintenance.
Industry...........................  483........................  Water transportation, freight and passenger.
Industry...........................  336612.....................  Boat building (watercraft not built in
                                                                   shipyards and typically of the type suitable
                                                                   or intended for personal use).
----------------------------------------------------------------------------------------------------------------
\a\ North American Industry Classification System (NAICS).

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your company is regulated by this action, you should carefully examine 
the applicability criteria in 40 CFR 94.1, as well as the future 
proposed regulations. Note that in addition to the marine diesel 
engines currently regulated under 40 CFR 94, this rule also applies to 
marine diesel engines below 37 kW. If you have questions regarding the 
applicability of this regulation to a particular entity, consult the 
person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. What Should I Consider As I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
EDOCKET, 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.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    i. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. 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.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Additional Information About This Rulemaking

    Locomotive. The current emission standards for new locomotive 
engines were adopted by EPA in 1998 (see 63 FR 18978, April 16, 1998). 
This advance notice of proposed rulemaking relies in

[[Page 39278]]

part on information that was obtained for that rule, which can be found 
in Public Docket A-94-31. That docket is incorporated by reference into 
the docket for this action, OAR-2003-0190.
    Marine. The current emission standards for new marine diesel 
engines were adopted in 1999 and 2003 (see 64 FR 73300, December 29, 
1999 and 66 FR 9746, February 28, 2003). This advance notice of 
proposed rulemaking relies in part on information that was obtained for 
those rules, which can be found in Public Dockets A-97-50 and A-2000-
01. Those dockets are incorporated by reference into the docket for 
this action, OAR-2003-0190.
    Other Dockets. This advance notice of proposed rulemaking relies in 
part on information that was obtained for our recent highway diesel and 
nonroad diesel rulemakings, which can be found in Public Dockets A-99-
06 and A-2001-28 (see also OAR 2003-0012).\1\ Those dockets are 
incorporated by reference into the docket for this action, OAR-2003-
0190.
---------------------------------------------------------------------------

    \1\ Control of air pollution from new motor vehicles: Heavy-duty 
engine and vehicle standards and highway diesel fuel sulfur control 
requirements, 66 FR 5001 (January 18, 2001); Control of Emissions of 
Air Pollution from Nonroad Diesel Engines and Fuel, published 
elsewhere in this issue of the Federal Register.
---------------------------------------------------------------------------

Table of Contents

I. Overview
    A. What New Controls Is EPA Considering?
    B. Why Is EPA Considering New Controls?
    C. Basis for Action Under the Clean Air Act
II. Controlling Locomotive Emissions
    A. Background
    B. Scope
    C. Tier 3 Standards and Effective Dates
    D. Testing
    E. Certification and compliance
III. Controlling Marine Diesel Engine Emissions
    A. Background
    B. Scope
    C. Tier 3 Standards and Effective Dates
    D. Testing
    E. Certification and compliance
IV. Potential Environmental Impacts and Costs
    A. Estimated Inventory Contribution
    B. Potential Costs
V. Small Business Concerns/Regulatory Flexibility
VI. Public Participation
    A. How Do I Submit Comments?
    B. Will There Be a Public Hearing?
VII. Statutory and Executive Order Reviews
    A. Administrative Designation and Regulatory Analysis (Executive 
Order 12866)
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Intergovernmental Relations
    E. National Technology Transfer and Advancement Act
    F. Protection of Children (Executive Order 13045)
    G. Federalism (Executive Order 13132)
    H. Energy Effects (Executive Order 13211)
    I. Plain Language

I. Overview

    In recent years, EPA has adopted major new programs designed to 
reduce emissions from diesel engines. When fully phased in, these new 
programs for highway and nonroad diesel engines will lead to the 
elimination of over 90% of harmful pollutants from these sources.\2\ 
The public health and welfare benefits of these actions are very 
significant, projected at over $70 billion and $83 billion for our 
highway and nonroad diesel programs, respectively, in 2030. In 
contrast, the corresponding annual cost of these programs will be a 
small fraction of this amount. We have estimated the annual cost at 
$4.2 billion and $2 billion, respectively in 2030. These programs are 
being implemented over the next decade.\3\
---------------------------------------------------------------------------

    \2\ As used in this ANPRM, ``nonroad diesel engines'' refers to 
the off-highway engines regulated under 40 CFR Part 89 (Tier 1, 2, 
and 3 standards) and Part 1039 (Tier 4). This generally covers a 
wide variety of land-based engines, including those used in farm, 
construction, industrial, and mining applications.
    \3\ See 66 FR 5001 (January 18, 2001), and the Nonroad final 
rule published elsewhere in this issue of the Federal Register for 
the final rules regarding highway diesel, and nonroad diesel 
programs, respectively.
---------------------------------------------------------------------------

    Marine diesel engines less than 30 liters per cylinder (marine 
diesel engines) and locomotives are significant contributors to our 
national mobile source emissions inventory.4, 5 Even with 
recent emission standards for these sectors, the contribution of these 
engines is expected to grow. Without new controls, we estimate that 
their respective contributions to mobile source NOX and fine 
diesel particulate matter (PM2.5) emissions will increase to 
27 percent and 45 percent by 2030. Reducing emissions from these two 
engine categories can lead to significant public health benefits such 
as reduced premature mortalities and decreased incidences of heart 
attacks and asthma exacerbations. It will help states and localities 
attain and maintain PM and ozone national ambient air quality standards 
(NAAQS).
---------------------------------------------------------------------------

    \4\ As used in this ANPRM, ``marine diesel engine'' refers to 
compression-ignition marine engines below 30 liters per cylinder 
displacement unless otherwise indicated.
    \5\ This rule will address emissions from all marine diesel 
engines below 30 liters used for commercial, recreational, or 
auxiliary applications. Marine diesel engines at or above 30 liters 
per cylinder are not part of this rulemaking. These large engines, 
which are used for propulsion on ocean-going vessels, are the 
largest mobile source diesel engines regulated by EPA. They will be 
addressed in a rule to be finalized by April 27, 2007. See 68 FR 
9746 (February 28, 2003) for more information about that future 
rule.
---------------------------------------------------------------------------

    Locomotive and marine diesel engines are currently subject to 
emission standards that rely on engine-based technologies to reduce 
emissions.\6\ The opportunity to gain large additional public health 
benefits, as well as the similarities between these engines and highway 
and general nonroad engines, lead us to consider additional emission 
controls based on the same advanced emission control technologies on 
which our 2007/2010 highway and Tier 4 nonroad diesel engine programs 
are based. The use of these technologies on locomotive and marine 
diesel engines will be enabled by the ultra low sulfur diesel (ULSD) 
requirements established in our recently adopted nonroad diesel rule, 
which sets a 15 parts per million (ppm) sulfur limit for locomotive and 
marine diesel fuel beginning in 2012.
---------------------------------------------------------------------------

    \6\ See the ``Additional Information about this Rulemaking'' 
section above for the specific cites.
---------------------------------------------------------------------------

    In this Advance Notice of Proposed Rulemaking (ANPRM), we describe 
the emission controls we are considering for locomotive and marine 
diesel engines. The remainder of this Introduction provides a summary 
of the controls we are considering and a brief description of the 
impacts of these emissions on human health and welfare. Sections II and 
III describe the emission controls we are considering for our 
locomotive and marine diesel engine programs, respectively. In Section 
IV, we describe the contribution of these engines to mobile source 
NOX and diesel PM2.5 inventories and our plans 
for our future cost analysis. Section V contains our plan to solicit 
the input from small businesses in these sectors. Finally, sections VI 
and VII contain information about public participation and statutory 
and executive order review. We are interested in comments covering all 
aspects of this ANPRM.
    We are planning to issue a Notice of Proposed Rulemaking addressing 
engine standards for locomotive and marine diesel engines by mid-2005, 
with a final rule targeted for mid-2006.

A. What New Controls Is EPA Considering?

    EPA currently has emission standards for locomotives and marine 
diesel engines. The standards for new locomotives, adopted in 1998, 
phase in from 2000 through 2005. That program includes emission limits 
(that apply upon remanufacturing) for existing locomotives that were 
originally manufactured after 1973. The standards for marine diesel 
engines were adopted in 1999 for commercial marine engines

[[Page 39279]]

and in 2002 for recreational marine engines. They phase in from 2004 
through 2009, depending on engine size and application. These 
locomotive and marine diesel engine standards are similar in stringency 
to our nonroad Tier 2 standards that were set in 1998 and began phasing 
in starting in 2001. The technologies needed to meet our nonroad diesel 
Tier 2 standards in turn are derived from highway diesel engine 
technologies that have been in widespread use since the early 1990's, 
which achieve emissions reductions through judicious in-cylinder 
control of ignition timing and fuel injection pressure. The significant 
lag in leadtime between application of this technology to land-based 
and marine nonroad engines compared to highway engines is more 
reflective of the challenges involved in regulating markets just 
starting to focus on emissions control programs (including development 
of testing lab capability and production line quality assurance 
measures, and the like), than of the challenges involved in adapting 
the technology itself to the differing engine applications.
    Emission control technologies for diesel engines have advanced 
substantially since these rules were issued, especially with regard to 
high-efficiency catalytic exhaust emission control systems. Our 2007 
highway and Tier 4 nonroad diesel engine emission standards are 
predicated on these new technologies enabling NOX, HC and PM 
emission reductions of 90 percent or more. These new standards apply to 
engines ranging up to several thousand horsepower. PM and HC emissions 
can be controlled to these levels through the use of catalyzed diesel 
particulate filters (CDPFs). CDPFs are a well proven technology and 
have been used in numerous retrofit applications including retrofits of 
locomotive switcher engines. NOX emissions can be controlled 
through the use of NOX adsorbers or selective catalytic 
reduction (SCR), both of which are capable of large NOX 
reductions. SCR technology has already been implemented on a number of 
marine engines.\7\ To operate reliably and at high efficiencies, these 
technologies require very low sulfur levels in diesel fuel. We have 
already put programs in place that will reduce sulfur to 15 ppm for 
highway and nonroad diesel fuel. Our nonroad diesel fuel program 
applies the 15 ppm fuel sulfur cap to refiners and importers of 
locomotive and marine diesel fuel beginning in 2012. However, the 
widespread availability of 15 ppm sulfur diesel fuel throughout the 
country even before this date makes it viable to consider locomotive 
and marine engine programs as early as 2011 that are based at least in 
some part on the use of this fuel.
---------------------------------------------------------------------------

    \7\ See EPA docket items OAR-2003-0190-0002, 0003, 0004, and 
0005.
---------------------------------------------------------------------------

    In ways relevant to the use of advanced emissions control 
technologies, marine diesel engines and locomotives are similar to 
highway and nonroad diesel engines. In fact, many marine diesel engines 
are derivatives of land-based nonroad engines, and both marine and 
locomotive engines share important design features with highway and 
nonroad diesel engines. The nonroad diesel standards cover engines of 
all sizes, including small engines similar in size to the smallest 
auxiliary marine engines and large engines on the scale of locomotive 
and large marine propulsion engines. The new catalyst based emission 
control technologies, which are expected to be applied for highway and 
nonroad diesel engines, can be similarly effective at controlling 
emissions from locomotive and marine engines. Therefore, we believe it 
is appropriate to consider applying advanced aftertreatment standards 
to locomotives and marine engines as well. Despite the fundamental 
similarities involved, we recognize that there are also some 
differences between the highway/nonroad engines for which the 
technologies were initially designed and the locomotive/marine engines 
to which we are considering applying this technology, and this may 
present some special challenges. We discuss these in this section I.A 
below. However, we do not believe that these challenges are so 
significant as to pose a barrier to setting standards based on 
implementing these technologies in the future. We do recognize that in 
order to address potential issues, we may need to consider flexibility 
in how the standards are implemented, and we request comment on the 
technology issues listed here and on any other technology issues that 
we should consider in setting new standards.
    Potential issues unique to locomotives include available space for 
the technology and scaling up of aftertreatment systems to large 
horsepower sizes. When scaled to locomotive-sized engines, the kinds of 
aftertreatment systems being developed for highway diesel engines would 
logically be larger, though not necessarily much larger than systems 
that will be applied to large nonroad diesels. Total locomotive size is 
constrained by the existing infrastructure. Height and width are 
constrained by tunnel and bridge clearances, and length is constrained 
by the curvature of the rails. On the other hand, we believe the use of 
aftertreatment may make it possible to reduce the need for the 
additional radiator space that is currently being applied to 
locomotives to increase aftercooling capacity. We request comment on 
the significance of any space constraints regarding the use of 
aftertreatment on locomotives, as well as potential ways of dealing 
with such constraints.
    Exhaust temperature may also be a key factor in the proper design 
of emission control technologies for locomotive and marine 
applications. For most catalytic emission control technologies there is 
a minimum temperature below which the rate of chemical reactions 
necessary for emissions control falls off. In general, exhaust 
temperature increases with engine power and can vary dramatically as 
engine power demands vary. Prolonged low-power operation can hamper the 
overall effectiveness of catalyst-based aftertreatment devices, unless 
steps are taken in designing them to compensate. An example of an 
application with a lot of low-power operation would be a tug boat that 
primarily idles or operates at low light loads moving around the harbor 
and only at high loads for a short time when pushing ships. We believe 
it may be necessary for advanced exhaust emission controls in at least 
some locomotive and marine applications to use active regeneration 
mechanisms, such as the post-injection of diesel fuel into the exhaust 
stream to initiate thermal transients. This would be similar to the 
design measures we are projecting for robust operation of nonroad 
diesel engines in our Tier 4 program. We request comment on exhaust 
temperature profiles for locomotive and marine diesel engines and their 
impact on aftertreatment design strategies.
    One special consideration for marine engines derives from the fact 
that their exhaust systems are typically designed to operate with 
surface temperatures below 100[deg]C. This is intended to minimize the 
risk of fires in response to Coast Guard safety requirements. For most 
commercial marine engines, the exhaust piping is insulated and the 
exhaust is routed either through a muffler or under water. Typically, 
for larger vessels, the exhaust exits above the top of the vessel. 
However, in many recreational and light-duty commercial applications, 
the exhaust is water-jacketed and leaves the vessel below the water 
surface. In some cases, the jacketing-water and exhaust are mixed in 
the exhaust system before exiting the

[[Page 39280]]

vessel. This is especially common in sterndrive applications where the 
jacket-water mixes with exhaust within feet of the cylinder exhaust 
port and exits through the lower drive unit.
    Exhaust systems that rely on insulation to control surface 
temperature are likely to prove to be very well matched to the new 
emission control technologies which can benefit from such a thermal 
management technique. However, the use of water-jacketing may raise 
additional issues to be addressed. The first issue is the effect of the 
water jacketing on the exhaust gas temperature. Where an insulated 
exhaust helps keep the heat in the exhaust, water-jacketing removes 
heat thus lowering average exhaust temperatures and potentially 
reducing catalyst system effectiveness. We believe that there are a 
number of solutions to this issue including close-coupling of the 
catalyst system and the use of an insulating gap between the exhaust 
flow and the water jacket similar to the approach used to insulate the 
exhaust system. For sterndrive applications or other applications where 
the exhaust is mixed with the water, we believe it may be necessary to 
redesign the exhaust system to ensure there is enough room in the dry 
part of the exhaust system to package the aftertreatment system. We 
request comment on packaging constraints for marine diesel engine 
applications that would affect the feasibility of applying exhaust 
aftertreatment or other emission control strategies. We also request 
comments describing methods to address potential issues related to 
system packaging.
    We believe that, given adequate development lead time and 
appropriate structuring of phase-in provisions, locomotive and marine 
diesel engines could be designed to successfully employ the same high-
efficiency exhaust emission control technologies now being developed 
for highway and nonroad engine use.

B. Why Is EPA Considering New Controls?

    Marine diesel engines and locomotives contribute to a number of 
serious air pollution problems and will continue to do so in the future 
absent further emission reduction measures. Their emissions lead to 
adverse health and welfare effects associated with ozone, PM, 
NOX, and volatile organic compounds, including toxic 
compounds. In addition, diesel exhaust is of specific concern because 
it is likely carcinogenic for humans as well as posing a hazard from 
noncancer respiratory effects. Ozone, NOX, and PM also cause 
significant public welfare harm such as damage to crops, 
eutrophication, regional haze, and soiling of building materials.\8\
---------------------------------------------------------------------------

    \8\ For a full discussion of the human health and environmental 
problems that diesel engine emissions contribute to, see Chapter 2 
of the Regulatory Impact Analysis for our nonroad diesel rule, 
available on our Web site: http://www.epa.gov/otaq.
---------------------------------------------------------------------------

    Millions of Americans continue to live in areas with unhealthy air 
quality that may endanger public health and welfare. Part or all of 474 
counties nationwide are in nonattainment for either failing to meet the 
8-hour ozone standard or for contributing to poor air quality in a 
nearby area. There are approximately 159 million people living in these 
non-attainment areas. In addition, approximately 65 million people live 
in counties where air quality measurements violate the PM2.5 
National Ambient Air Quality Standards (NAAQS). These numbers do not 
include the tens of millions of people living in areas where there is a 
significant future risk of failing to maintain or achieve the ozone or 
PM2.5 NAAQS. Federal, state, and local governments are 
working to bring ozone and PM levels into compliance with the NAAQS 
attainment and maintenance plans and the reductions we are considering 
in this ANPRM will play a critical part in these actions. In the 
comments submitted on our recent nonroad diesel rule, several states 
requested EPA take action to control these emissions. For example, 
Illinois Lieutenant Governor Pat Quinn commented that ``in Illinois 
locomotives are quite prevalent especially in the urban area in and 
around Chicago. It is in urban areas that the risk of cancer and asthma 
is highest. Incorporating marine vessels and locomotives into the 
regulations will create an incentive to aggressively advance 
technology.'' \9\ Marianne L. Horinko, Acting Administrator, California 
Air Resources Board, commented that ``in 2000, locomotives and 
commercial marine engines were responsible for 15 percent of the PM 
emissions inventory for diesel mobile sources in California * * * ARB 
strongly recommends that U.S. EPA proceed as rapidly as possible * * * 
to establish aftertreatement-based emissions standards for locomotive 
and marine engines.'' \10\ Dr. Pamela M. Berger, Director of 
Environmental Policy, Office of the Mayor, City of Houston commented 
that ``given that municipalities and states are not empowered to 
regulate locomotives and that these vehicles are a growing source of 
emissions, we would encourage EPA to regulate them.'' \11\ Many other 
commenters encouraged the Agency to adopt further emission controls for 
these engines as quickly as possible. See section 8.3.3 of the Summary 
and Analysis of Comments document for the nonroad diesel final rule, 
available in EPA docket A-2001-28.
---------------------------------------------------------------------------

    \9\ Air Docket OAR 2003-0012, Comment OAR-2003-0012-0781.
    \10\ Air Docket OAR 2003-0012, Comment OAR-2003-0012-0644.
    \11\ Air Docket OAR 2003-0012, Comment OAR-2003-0012-0630.
---------------------------------------------------------------------------

    Even with the control measures already in place for locomotives and 
marine diesel engines, the combination of expected future growth and 
the dramatic emission reductions expected from our recently established 
highway and nonroad diesel engine control programs will make the 
relative emission contribution from locomotives and marine diesel 
engines grow quite large over time. We estimate that they will 
contribute about 27 percent and 45 percent of national mobile source 
NOX and diesel PM2.5 emissions, respectively, by 
2030. Additionally, the contribution of these engines can be 
significantly higher in ports, in rail centers, and along coasts and 
railways. Many of these areas are highly populated and suffer from poor 
air quality. Because locomotives and marine diesel engines contribute 
greatly to these air quality problems, further controls in this source 
category will likely be needed to resolve them. Commenters are 
encouraged to provide any information they may have that would help us 
to further assess the contributions of locomotive and marine engines to 
the nation's air quality problems, especially in regard to future 
growth in these markets.
    We expect that our proposal for new control measures will focus on 
PM and air toxics reductions as early as feasible, consistent with our 
2007/2010 highway and Tier 4 nonroad rules. However, we recognize that 
these engines are also significant contributors of NOX 
emissions and that high-efficiency NOX controls may well be 
feasible for these engines in the timeframes under consideration. We 
request comment, therefore, on all aspects of potential emissions 
control measures that might be taken to improve air quality.

C. Basis for Action Under the Clean Air Act

    Section 213 of the Clean Air Act (the Act) gives us the authority 
to establish emissions standards for nonroad engines and vehicles. 
Section 213(a)(3) authorizes the Administrator to set (and from time to 
time revise) standards for

[[Page 39281]]

NOX, VOCs, or carbon monoxide emissions from nonroad 
engines, to reduce ambient levels of ozone and carbon monoxide. That 
section specifies that the ``standards shall achieve the greatest 
degree of emission reduction achievable through the application of 
technology which the Administrator determines will be available for the 
engines or vehicles.'' As part of this determination, the Administrator 
must give appropriate consideration to cost, lead time, noise, energy, 
and safety factors associated with the application of such technology. 
Section 213(a)(4) authorizes the Administrator to establish standards 
to control emissions of pollutants, such as PM, which ``may reasonably 
be anticipated to endanger public health and welfare.'' In setting 
appropriate standards, EPA is instructed to take into account costs, 
noise, safety, and energy factors. Section 213(a)(5) contains similar 
provisions that authorize the Administrator to set standards for new 
locomotive engines.
    As part of the development of our Notice of Proposed Rulemaking, we 
will analyze whether the emission control program under consideration 
for locomotive and marine diesel engines is technologically feasible 
and reflects the greatest degree of emission reduction achievable in 
the model years to which it would apply, giving appropriate 
consideration to costs and the other factors listed in the statute. We 
will also perform an analysis of the impacts of locomotive and marine 
diesel emissions on human health and welfare and the anticipated 
benefits of the standards.

II. Controlling Locomotive Emissions

A. Background

1. What Is the Nature of the Locomotive Market?
    There are currently three manufacturers of locomotive engines for 
the U.S. market: General Electric (GE), the Electromotive Division of 
General Motors (EMD), and Caterpillar. Total sales of freshly 
manufactured locomotives in the U.S. can vary dramatically from year to 
year. Since 1997 sales have been between 600 and 900 units per year. 
All freshly manufactured locomotives are essentially built to order for 
the major Class I railroads. Class II and III railroads typically 
purchase used locomotives rather than purchasing new.\12\
---------------------------------------------------------------------------

    \12\ In the United States, freight railroads are subdivided into 
three classes by the Federal Surface Transportation Board (STB), 
based on annual revenue. In 1994 a railroad was classified as a 
Class I railroad if annual revenue was $250 million or greater 
($1991), as a Class II railroad with annual revenue of at least $20 
million but less than $250 million ($1991), and as a Class III 
railroad with revenues below $20 million (1991). Surface 
Transportation Board 1996/1997 Annual Report, accessed at http://www.stb.dot.gov/stb/docs/ActivityReport1996-1997.pdf on April 6, 
2004.
---------------------------------------------------------------------------

    Locomotives are typically remanufactured to ``as new'' condition 
every five to seven years throughout their services lives, and they 
typically remain in service for 30 to 40 years or more before being 
scrapped. Under our current regulations, these remanufactured engines 
are considered ``new'' for the purposes of applying emissions 
standards. As might be expected, there is a thriving market in both 
aftermarket parts and remanufacturing services. While some railroads 
remanufacture their own locomotives, other railroads contract to have 
this work performed for them. The two largest locomotive manufacturers 
(GE and EMD) both have unit exchange programs where a railroad can 
trade in a locomotive engine in need of remanufacture for one that has 
just been remanufactured. There are also a number of independent 
companies that offer engine remanufacturing services.
2. What Are the Existing Standards for Locomotives?
    Three separate sets of emission standards have been adopted, with 
applicability of the standards dependent on the date a locomotive is 
freshly manufactured.\13\
---------------------------------------------------------------------------

    \13\ 63 FR 18977 (April 16, 1998).
---------------------------------------------------------------------------

     Tier 0 standards apply to locomotives and locomotive 
engines that were freshly manufactured from 1973 through 2001; the 
standards apply any time the engines are manufactured or 
remanufactured.
     Tier 1 standards apply to locomotives and locomotive 
engines that are freshly manufactured from 2002 through 2004. These 
locomotives and locomotive engines will be required to meet the Tier 1 
standards at the time of original manufacture and at each subsequent 
remanufacture.
     Tier 2 standards apply to locomotives and locomotive 
engines that are freshly manufactured in 2005 and later. These 
locomotives and locomotive engines will be required to meet the 
applicable Tier 2 standards at the time of original manufacture and at 
each subsequent remanufacture.
    We also have opacity standards for these locomotives and locomotive 
engines. Electric locomotives, historic steam-powered locomotives, and 
locomotives freshly manufactured before 1973 are not currently covered 
by emission regulations.
    When fully phased in, these emission standards will reduce 
NOX emissions from locomotives by nearly two-thirds, and HC 
and PM emissions by half. Nevertheless, even with these standards in 
place, serious concerns about emissions from locomotives remain, as 
discussed in section I.B.

B. Scope

    Because of the potential for locomotives to remain in service for 
40 years or more as discussed in section II.A.1, we are considering 
additional requirements for all 1973 and later locomotives. We are 
considering an approach similar to our existing program, in which we 
would set new standards for in-use and new engines, grouped into three 
categories:
     Locomotives freshly manufactured after the effective date 
of new Tier 3 standards.
     Locomotives currently subject to the Tier 2 standards.
     Locomotives currently subject to the Tier 0 and Tier 1 
standards.
    For the first group of engines, those that would be freshly 
manufactured after the new standards begin to take effect (as early as 
2011), we are considering standards that reflect the use of advanced 
emission controls and aftertreatment devices. These potential standards 
are discussed in Section II.C. Regarding the second group of engines, 
we note that manufacturers have already finished the primary design 
process for their Tier 2 locomotives and are currently testing these 
designs to ensure that they will be ready for production by 2005, and 
this will be taken into account in evaluating ideas for further control 
measures for these engines.
    We are also considering new requirements for locomotives freshly 
manufactured in model years 1973 through 2004, currently subject to 
Tier 0 or Tier 1 standards. In addition to potential new standards for 
some or all of these engines upon remanufacture, we are interested in 
ideas for voluntary provisions and initiatives that could encourage 
cleaner engines, and in how these might be coordinated with new 
standards for new and remanufactured engines through emissions trading, 
fleetwide average standards, or similar approaches. Also, we request 
comment on the applicability of technologies being developed for Tier 2 
locomotives to these earlier engines upon remanufacture.

C. Tier 3 Standards and Effective Dates

1. Tier 3 Standards for New Engines
    We are considering emission standards for new locomotives built as

[[Page 39282]]

early as 2011, based on the application of advanced emission control 
technologies. These technologies are currently being developed for use 
in highway and nonroad applications and will begin to see widespread 
use in these applications starting in 2007. In those programs, we 
estimated that NOX and PM emissions could be reduced by 90 
percent or more from emission levels in the exhaust leaving the engine 
through the use of NOX aftertreatment and PM filter 
technologies. We would expect that similar levels of NOX and 
PM reductions could be achieved by applying these technologies to 
locomotives as well.
    Although for the most part these highway and nonroad engines are 
smaller than locomotive engines, much of the fundamental diesel engine 
and emission control technology involved is the same, such as PM 
filtering matrix designs, catalyst formulations to optimize exhaust 
stream chemical reactions, and mechanisms for active regeneration of 
filter and adsorber beds. Furthermore, some nonroad diesel engines 
subject to our nonroad Tier 4 regulations starting in 2011 are of 
similar size to locomotive engines, 1000 to 3000 horsepower or more. 
Although they are not typically made by the same manufacturers, 
locomotive engines have substantial design and operating similarities 
to large mobile generator set engines that will allow the locomotive 
engines to benefit from emission control technology being developed for 
(and in limited applications already applied to) these generator sets. 
We note too that the largest generator sets, those over 1200 hp, are 
subject to the earliest stringent NOX control requirements 
of any engines in the Tier 4 program, 0.50 g/bhp-hr in 2011, and to 
stringent PM standards in that year as well.
    Given that other technologies, such as exhaust gas recirculation 
(EGR) and optimized fuel injection, could also be applied in tandem 
with exhaust aftertreatment, we expect that similar final emission 
levels to those achievable from highway and nonroad engines may be 
feasible. The availability of EGR and other engine-based means of 
achieving some degree of emissions control also introduces the 
potential for Tier 3 control in multiple phases, as we do not expect 
locomotive manufacturers will need to use EGR to meet the Tier 2 
standards in 2005. As a result, we request comment on the different 
forms these future standards could take, including the following:
     Should we adopt the approach taken in the heavy-duty 
highway and nonroad diesel programs involving a PM control requirement 
on 100% of the engines concurrent with a NOX requirement 
that is phased in over three years, starting as early as 2011?
     Would it be more appropriate for locomotive manufacturers 
to focus their technology development efforts on a single, final tier 
of standards with the possibility of getting to aftertreatment-based 
emission levels sooner than would likely be the case under the two-
phase approach?
     Are there phase-in options that we could adopt to 
encourage the early introduction of aftertreatment technology?
     How should aftertreatment-based particulate matter 
controls be coordinated with those for NOX?
2. Idling Emissions Control
    Locomotives typically spend significant amounts of time idling. 
This is especially the case in switchyards, which tend to be located in 
urban areas. Our current test procedure reflects this reality, with 
idling operation representing 38 percent of the line-haul duty cycle 
and almost 60 percent of the switch duty cycle. Although the fact that 
idling emissions per unit time may be relatively low considering that 
they occur at low power and fuel consumption levels, the high 
percentage of total time locomotives spend idling in urban areas, some 
of which are hot-spot air quality problem areas, may warrant our 
addressing these emissions, and we request comment on our doing so.
    We note that locomotive operators already recognize that there is 
some public demand to reduce the idling of locomotives. For this reason 
some railroads are beginning to employ idle shutdown technology on 
locomotives. This technology simply shuts down a locomotive after a 
certain length of time at idle conditions. Clearly this technology is 
feasible and available for use, and we are considering what steps we 
might take to encourage or require its widespread use. Thus, we request 
comment on whether we should consider the mandatory use of idle 
shutdown technology or whether a voluntary program would be more 
appropriate, both for new and in-use locomotives. In the case of a 
voluntary program, we request comment on any incentives we might offer 
to encourage participation in such a program.

D. Testing

    In use, locomotive engines are operated at a series of discrete 
load and speed points, called notches. Our current test procedure 
involves running a locomotive or locomotive engine through all of its 
different power notches, as well as its idle settings. Emissions are 
measured at each of these steady state points, and compliance with the 
applicable emission standards is determined by weighting the emissions 
at each point according to the applicable weighting factors to arrive 
at a composite emissions level. These weighting factors were derived 
through the analysis of in-use operating data from a number of 
locomotives, and we believe they accurately represent in-use locomotive 
operations.
    Because of this, we do not expect it will be necessary to adopt 
comprehensive ``not-to-exceed'' standards provisions for locomotives as 
we have in our highway and nonroad diesel engine programs. However, the 
possible inclusion of exhaust aftertreatment technology on future 
locomotives leads us to request comment on whether the simple approach 
of weighting the steady state modes according to the duty cycle would 
still accurately represent in-use operation. Exhaust temperatures tend 
to be lower at the lower power notches and idle modes, raising 
questions regarding the effectiveness of aftertreatment technology in 
those modes of the test procedure versus those modes in actual 
operation, given that the test procedure requires operating parameters 
to stabilize in each mode before emissions sampling begins.
    The test duty cycle weightings are based on the average amount of 
time that a locomotive spends in each power notch over a period of 
time. However, it does not address whether the time spent in lower 
power notches happens in fewer, longer segments or many shorter ones. 
If the actual in-use operation in low power notches happens in fewer, 
longer segments, the test cycle would be more representative of actual 
in-use operation from an exhaust temperature perspective than if the 
low power notch operation occurred in a higher number of shorter 
segments, with operation at higher power notches mixed in. In this 
latter case, the higher power notch operation may serve to keep exhaust 
temperatures higher in the low power notches than might be the case if 
the low power notch operation took place in fewer, longer segments. We 
request comment on whether this is a concern and, if so, what 
modifications could be made to the test procedures without impacting 
its viability or representativeness, or the stringency of the 
standards.

E. Certification and Compliance

    Our current locomotive compliance program contains provisions for 
engine family certification, production line testing and in-use testing 
of both freshly

[[Page 39283]]

manufactured and remanufactured locomotives. The in-use testing program 
contains requirements for locomotive manufacturers and remanufacturers, 
as well as for locomotive operators. We are requesting comment on 
whether we should consider any changes or additions to our current 
certification and compliance programs. In addition to possible 
modifications to our current programs, we are asking for comment on 
whether an onboard diagnostic (OBD) program would be needed for 
locomotives, especially for locomotives equipped with advanced exhaust 
aftertreatment devices.
    We currently have OBD requirements in place or under development 
for a number of mobile source programs, including light-duty highway, 
heavy-duty highway, and nonroad diesel engines. We request comment on 
the appropriateness and need for a locomotive diagnostic program in 
light of our current in-use testing programs, and specifically request 
comment on what types of parameters would be monitored under such a 
diagnostic program. We are particularly interested in comments on how 
our existing OBD programs for other source categories could be adapted 
for use on locomotives.

III. Controlling Marine Diesel Engine Emissions

A. Background

1. What Is the Nature of the Marine Diesel Engine Market?
    Our current marine diesel engine emission control program 
distinguishes between five kinds of marine diesel engines, defined in 
terms of displacement per cylinder.\14\ These five types are set out in 
Table III-1. In this rulemaking we will consider new standards for all 
of these marine diesel engines except Category 3 engines. Category 3 
marine diesel engines, which are used for propulsion on ocean-going 
vessels, will be covered in a separate rule to be issued by April 27, 
2007.\15\
---------------------------------------------------------------------------

    \14\ This approach was used because per-cylinder displacement is 
an engine characteristic that is not easily changed and is constant 
for a given engine model or series of engine models. It therefore 
avoids the problem that can arise when a higher power engine is made 
by joining together more cylinders: the larger version of the engine 
could be subject to a different numerical standard than an engine 
formed from a smaller number of cylinders.
    \15\ See 68 FR 9746 (February 28, 2003) for more information 
about the future rule for Category 3 marine diesel engines.
---------------------------------------------------------------------------

    All of the marine diesel engines that are included in this rule 
operate on distillate diesel fuel. Some Category 2 marine diesel 
engines, however, may operate on a blend of distillate and residual 
fuel or even on residual fuel (for example, fuels commonly known as 
DMB, DMC, RMA, and RMB).\16\ Operation on these higher sulfur fuels may 
require engine modifications.
    We request comment on the extent to which Category 2 marine diesel 
engines on vessels in the U.S. fleet use residual fuel or residual fuel 
blends and how we should take this into account as we design the 
emission control program for those engines.
---------------------------------------------------------------------------

    \16\ The final rule setting limits on the sulfur content of 
marine diesel fuel does not apply to distillate fuel with a T90 
greater than 700[deg]F that is used only in Category 2 or Category 3 
marine diesel engines. This would include marine DMB and DMC fuels 
used in these engines.

                                  Table III-1.--Marine Diesel Engine Categories
----------------------------------------------------------------------------------------------------------------
                                                                                                    Final rule
                Category                          Rated power          Displacement per cylinder    publication
----------------------------------------------------------------------------------------------------------------
Small...................................  <=37 kW...................  any.......................            1998
Commercial C1...........................  >37 kW....................  < 5 liters................            1999
Commercial C2...........................  >37 kW....................  >= 5 liters and < 30                  1999
                                                                       liters.
Commercial C3...........................  >37 kW....................  >= 30 liters..............            2003
Recreational............................  >37 kW....................  < 5 liters................            2002
----------------------------------------------------------------------------------------------------------------

    The same engine manufacturers that dominate the land-based nonroad 
engine market are also active in the marine diesel engine market. These 
manufacturers often make recreational as well as commercial marine 
diesel engines. Annual sales are different for each of the categories 
addressed in this rule but are smaller than for their land-based 
counterparts. According to analysis performed for our 1999 rule, there 
are about 5,000 commercial C1 engines produced annually, about 100 
commercial C2 engines, and about 10,000 recreational diesel engines. In 
addition, there are about 6,000 marine diesel engines less than 37 kW 
produced annually. Like locomotives, certain marine diesel engines can 
have long service periods, with some of the engines remaining in 
service for as long as 20 or even 30 years.
2. What Are the Existing Standards for Marine Diesel Engines?
    Our 1999 rule for commercial marine diesel engines set two tiers of 
emission limits for Category 1 and Category 2 marine diesel engines 
(see 40 CFR 94.9). The Tier 1 standards were initially adopted as 
voluntary standards and are equivalent to the MARPOL Annex VI 
NOX limits.\17\ These standards were made mandatory for 
engines above 2.5 liters per cylinder in our 2003 rule, beginning in 
2004. The Tier 2 commercial marine diesel engine standards we adopted 
in 1999 address NOX, PM, HC, and carbon monoxide emissions, 
and go into effect from 2004 through 2007, depending on engine size. At 
the time, we estimated that these standards would yield a 27 percent 
reduction in NOX emissions from the MARPOL Annex VI 
NOX limits and a 26 percent reduction in PM emissions in 
2020.
---------------------------------------------------------------------------

    \17\ The MARPOL Annex VI NOX limits are the engine 
standards adopted by the International Maritime Organization in 
Annex VI to the International Convention on the Prevention of 
Pollution from Ships, 1973, as Amended by the 1978 Protocol Relating 
Thereto. These international consensus standards will go into effect 
when the Annex has been ratified by 15 countries representing no 
less than 50 percent of the world's merchant shipping tonnage. To 
date, the Annex has been ratified by 13 countries representing about 
54.5 percent. For more information on MARPOL Annex VI, see our 2003 
rule.
---------------------------------------------------------------------------

    Recreational marine diesel engines were included in our 2002 
recreational vehicle rule (see 40 CFR 94.9). These engines are subject 
to standards that are equivalent to our commercial marine diesel engine 
standards, but two years later.\18\ We estimated that these standards 
would yield a 21 percent reduction in NOX emissions and an18 
percent reduction in PM emissions in 2020.
---------------------------------------------------------------------------

    \18\ 67 FR 68242 (November 8, 2002).
---------------------------------------------------------------------------

    Marine diesel engines below 37 kW were included in our 1998 nonroad 
diesel rule and are subject to the same Tier 1 and Tier 2 standards as 
their land-based counterparts (see 40 CFR 89.112).\19\ They were not 
included in our most recent diesel nonroad rule, however, and are 
therefore not subject

[[Page 39284]]

to the subsequent tier of standards that will apply to their land-based 
counterparts. Instead, additional controls for small marine diesel 
engines were deferred to this rulemaking.
---------------------------------------------------------------------------

    \19\ 63 FR 56967 (October 23, 1998).
---------------------------------------------------------------------------

B. Scope

    The emission control program contemplated by today's action is 
intended to cover all new marine diesel engines up to 30 liters per 
cylinder, including those used in commercial, recreational, and 
auxiliary applications.
    EPA's existing standards for new marine diesel engines do not apply 
to engines that were built prior to the effective date of those 
standards. In our 1998 proposal, we requested comment on whether we 
should apply the standards to engines when they are remanufactured, 
using the locomotive approach, given the long useful lives of marine 
diesel engines. Under the locomotive approach, an engine built in 1973 
or later but prior to entry into force of the Tier 1 standards is 
considered to be ``new'' when each of its power assemblies is replaced 
or is inspected and qualified. This approach was used to address the 
long periods of service commonly found for locomotives (30 to 40 
years). Certain commercial marine diesel engines also have long periods 
of service (20 to 30 years) that retard the turnover to the new 
standards. However, several characteristics of the marine industry make 
a direct application of this approach to marine diesel engines more 
difficult. Unlike the railroad industry, there are many companies that 
operate marine diesel engines, and these companies do not rely on a 
small number of engine remanufacturers to work on their engines. In 
fact, many of these operators employ their own mechanics to do all 
maintenance and remanufacturing work. There is accordingly little 
uniformity in remanufacturing practices across the industry. In 
addition, setting emission limits for remanufactured in-use marine 
diesel engines may be disruptive to a large number of small businesses 
that own and operate these vessels.
    We are interested in exploring this issue, especially with regard 
to other mechanisms that could be used to achieve additional reductions 
from in-use engines. In particular, we request comment on how we could 
design such a program in the context of the remanufacturers' specific 
market characteristics to provide incentives that encourage retrofits 
or that accelerate turnover. We request comment on the feasibility and 
potential costs and benefits of both voluntary and mandatory 
remanufacturing provisions for in-use marine diesel engines.

C. Tier 3 Standards and Effective Dates

    Substantial progress has been made in recent years in controlling 
diesel exhaust emissions through the use of robust, high-efficiency 
catalytic devices placed in the exhaust system. \20, 21\ Similar to the 
discussion above regarding technologies for PM, HC, and NOX 
control for locomotives, we believe PM filters and NOX 
adsorbers can be applied to marine diesel engines for emission 
reductions of 90% or more. For more specific information on these 
technologies, the regulatory impact analyses for our 2007 highway 
diesel program and most recent nonroad rule contains extensive 
discussions of how these devices work, how effective they are at 
reducing emissions, and what their limitations are, particularly their 
dependence on very-low sulfur diesel fuel to function 
properly.22, 23
---------------------------------------------------------------------------

    \20\ ``Highway Diesel Progress Review,'' U.S. EPA, June 2002. 
EPA420-R-02-016. (www.epa.gov/air/caaac/dieselreview.pdf) and 
``Highway Diesel Progress Review Report 2,'' U.S. EPA, March 2004, 
EPA420-R-04-004 (http://www.epa.gov/otaq/regs/hd2007/420r04004.pdf).
    \21\ ``Meeting Technology Challenges For the 2007 Heavy-Duty 
Highway Diesel Rule'', Final Report of the Clean Diesel Independent 
Review Subcommittee, Clean Air Act Advisory Committee, October 30, 
2002. (www.epa.gov/air/caaac/diesel/finalcdirpreport103002.pdf).
    \22\ ``Regulatory Impact Analysis: Heavy-Duty Engine and Vehicle 
Standards and Highway Diesel Fuel Sulfur Control Requirements,'' 
U.S. Environmental Protection Agency, EPA420-R-00-026, December 
2000. This document is available on our Web site at http://www.epa.gov/otaq/diesel.htm.
    \23\ ``Regulatory Impact Analysis: Control of Emissions from 
Nonroad Diesel Engines,'' U.S. Environmental Protection Agency, EPA 
420-R-04-007, May 2004. This document is available on our Web site, 
www.epa.gov/otaq.
---------------------------------------------------------------------------

    Although there are important differences between land-based and 
marine diesel engines, they are fundamentally similar. The majority of 
marine diesel engine designs are derived from highway and nonroad 
engine platforms. In addition, engines in some nonroad diesel 
applications, such as underground mining, have water-cooled exhaust 
systems similar to those used in many marine applications. 
Manufacturers of underground mining equipment have pioneered the use of 
advanced aftertreatment technologies for many years. We request comment 
on the similarities and differences between land-based and marine 
diesel engines with respect to emission control. We also request 
comment on whether marine diesel engines can be designed to 
successfully employ the same high-efficiency exhaust emission control 
technologies now being developed for highway and nonroad use. 
Commenters should consider the anticipated availability of diesel fuel 
meeting the 15 ppm maximum sulfur requirement and the required amount 
of development lead time.
    We request comment on emission standards for marine diesel engines 
that would be based on the transfer of exhaust emission control 
technology from land-based diesel engines. This approach would be 
consistent with the current marine Tier 2 emission standards which were 
based on technology transfer from land-based Tier 2 engines. We are 
considering applying such emission standards to new marine diesel 
engines built as early as 2011. Similar to the locomotive standards 
described in Section II above, we request comment on the following:
     Whether we should adopt the approach taken in the heavy-
duty highway and nonroad diesel programs involving a PM control 
requirement on 100% of the engines concurrent with a NOX 
requirement that is phased in over three years;
     Whether it would be more appropriate for marine engine 
manufacturers to focus their technology development efforts on a 
single, final tier of standards with the possibility of getting to 
aftertreatment-based emission levels sooner;
     Whether there are phase-in options that we could adopt to 
encourage the early introduction of aftertreatment technology; and
     How aftertreatment-based particulate matter controls 
should be coordinated with those for NOX.
    The technologies used to meet the Tier 2 standards are primarily 
in-cylinder engine controls such as fuel and air management 
improvements, consistent with the approach taken for heavy-duty highway 
diesel engines in the 1990's and subsequently for the nonroad diesel 
engine Tier 2 standards. Due to differences in engine design and 
application, the marine Tier 2 standards for HC+NOX are 
slightly higher than those in the nonroad Tier 2 standards. We request 
comment of whether these differences in design and application could 
have an effect on the levels of aftertreatment-based standards.
    We recognize that marine diesel engines generally have a much wider 
band of power ratings for a given per-cylinder displacement, however, 
we request comment on whether or not we should continue to catagorize 
the engines based on specific displacement rather than by rated power. 
The new nonroad Tier 4 standards established key aftertreatment-based 
emission control standard divisions at 19 kW and 56 kW engine power 
ratings. We request comment on whether these (or equivalent per-
cylinder displacement

[[Page 39285]]

categories) would be appropriate for marine engines as well.

D. Testing

1. NTE Zone
    The emission standards for marine diesel engines include not-to-
exceed requirements in which engines must meet specified emission 
limits within a zone of engine operation. This NTE zone is 
supplementary to primary emission standards which are based on the 
weighted average of emissions measured over a modal duty cycle. The 
purpose of the NTE requirements is to provide robust control of 
emissions over a broad range of in-use speed and load combinations (and 
ambient conditions) that a marine engine may experience in-use.
    One issue that has been raised with the use of aftertreatment is 
its effectiveness at light loads where exhaust temperatures are low. 
The modal duty cycle for commercial marine engines stresses high load 
operation, while the duty cycle for recreational marine engines is 
weighted more towards lighter loads. However, even for commercial 
marine engines, a large portion of the engine operation for vessels 
operating in harbors or near ports may be at light load. This operation 
is important because it is in harbors and ports that the emissions from 
marine engines may affect the most people. Therefore, an emission 
control strategy that works well at high loads, but poorly at light 
loads, may appear effective over the current test procedures without 
providing significant in-use emission benefits.
    We request comment on whether and how the marine diesel engine 
emissions standards and test procedures should be modified to better 
consider light load conditions. For instance, we request comment on 
whether the modal duty cycles should be modified or if the NTE zone 
would need to be expanded to capture more light load operation. If the 
NTE zone were adjusted, we request comment on how the emission caps 
would need to be adjusted to better reflect the capabilities of 
aftertreatment technology. We also solicit comment on alternative 
approaches that would help ensure the effectiveness of emission control 
technology over the wide range of operation and ambient conditions that 
a marine engine may experience in-use.
2. In-Use Compliance
    To sustain the emission benefits over the broadest range of in-use 
operating conditions, marine diesel engines must meet the applicable 
emission standards throughout their useful lives. One program that 
would help achieve this goal is manufacturer-run in-use testing. EPA 
requests comment on the concepts discussed below.
    The Agency plans to promulgate the in-use testing requirements for 
heavy-duty highway vehicles in the December 2004 time frame and plans 
to propose a manufacturer-run in-use testing program for nonroad land-
based diesel engines by 2005 or earlier. The nonroad diesel engine 
program is expected to be patterned after the heavy-duty highway 
program. The Agency expects to pattern the in-use testing requirements 
for nonroad diesel engines after a program that is being developed for 
heavy-duty diesel highway vehicles. The highway diesel vehicle program 
will be funded and conducted by the manufacturers of heavy-duty diesel 
highway engines with our oversight. We expect it will incorporate a 
two-year pilot program. The pilot program will allow the Agency and 
manufacturers to gain the necessary experience with the in-use testing 
protocols and generation of in-use test data using portable emission 
measurement devices prior to fully implementing the program.
    The goal of an in-use testing program would be to ensure that 
emissions standards are met throughout the useful life of the engines, 
under conditions normally experienced in-use. We request comment on 
implementing an in-use testing program for marine diesel engines. In 
addition, we request comment on creating a similar pilot program as is 
anticipated for highway vehicles and nonroad land-based engines. We 
also request comment on any unique issues related to marine engines 
that may require modifications to this approach. It should be noted 
that such an in-use testing program would be in addition to our normal 
compliance and enforcement provisions.

E. Certification and Compliance

    Our current marine compliance program contains provisions for 
engine family certification, production-line testing and in-use 
testing. We request comment on whether we should consider any changes 
or additions to our current certification and compliance programs. In 
addition to possible modifications to our current programs, we are 
asking for comment on whether an engine-diagnostic requirement would be 
beneficial for marine diesel engines. We currently have diagnostic 
programs in place for some other mobile sources. We request comment on 
the value of diagnostic requirements for marine diesel engines in light 
of our current in-use testing programs, and specifically request 
comment on what types of engine characteristics and components should 
be monitored under such a program. For example, should we consider 
actual onboard emissions measurement, which would require new hardware, 
or should we simply require that the existing sensors be utilized to 
better monitor for potential problems related to emission controls?

IV. Potential Environmental Impacts and Costs

A. Estimated Inventory Contribution

    Locomotives and marine diesel engines contribute to the formation 
of ground level ozone and fine particles. Based on our current 
inventory analysis, we estimate that these engines contributed 12 
percent and 10 percent of mobile source NOX and diesel 
PM2.5 emissions in 1996. We estimate that their contribution 
will increase to 27 and 45 percent of mobile source NOX and 
diesel PM2.5 emission by 2030, after phase-in of our 
existing locomotive and marine diesel engine emission control programs. 
Our current estimates for NOX and diesel PM2.5 
inventories are set out in Tables IV.A-1 and IV.A-2. The inventory 
projections include the newly adopted nonroad diesel engine standards 
and sulfur reductions for marine and locomotive diesel fuel. Also, 
diesel PM2.5 and SO2 emissions for locomotives 
and marine diesel engines were adjusted downward to account for the 
recent fuel sulfur limits on diesel marine and locomotive fuel. While 
we do not provide estimates for other pollutants in this ANPRM, it 
should be noted that these engines also contribute to national HC, 
carbon monoxide, and air toxics inventories. We will estimate those 
inventories as part of the development of our NPRM.
    Our current inventories for marine diesel engines are based on 
inventory work done in connection with our 1999 and 2003 marine diesel 
engine rules. The inventory for Category 1 marine diesel engines, which 
includes recreational, commercial, and auxiliary applications, is 
estimated using a methodology based on engine population, hours of use, 
average engine loads, and in-use emission factors. The inventory for 
Category 2 marine diesel engines is based on a combination of two 
approaches, one using ship registry data, engine rated power, 
operation, fuel consumption, and fuel specific emission factors, and 
the other using a cargo movement approach. Our inventory estimates 
assume that all these emissions occur within the U.S. airshed. Finally, 
the emissions for marine diesel

[[Page 39286]]

engines less than 37 kW are estimated using the draft NONROAD2004 
model.
    As part of the development of our NPRM, we will be re-evaluating 
our marine diesel inventory with respect to Category 1 and Category 2 
marine diesel engines and locomotives. We will also be investigating 
the localized effects of these emissions in and around ports and rail 
yards. We will be posting a note on our locomotive and marine Web sites 
that describes our plans and solicits input on several aspects of our 
inventory research.

           Table IV.A-1.--Annual NOX Baseline Emission Levels for Mobile and Other Source Categories a
----------------------------------------------------------------------------------------------------------------
                                                  1996                                     2030
                               ---------------------------------------------------------------------------------
           Category                           Percent of                               Percent of
                                 NOX short      mobile      Percent of    NOX short      mobile      Percent of
                                    tons        source         total         tons        source         total
----------------------------------------------------------------------------------------------------------------
Marine Diesel except C3 \b\...      673,309           5.2           2.8      655,052          15.6           4.5
Locomotives...................      934,070           7.2           3.8      481,077          11.5           3.3
Subtotal of Affected              1,607,379          12.4           6.6    1,136,128          27.1           7.8
 Categories...................
Land-based Nonroad Diesel.....    1,564,904          12.1           6.4      458,649          11.0           3.2
Recreational Marine SI........       33,304           0.2           0.1       67,893           1.6           0.5
Nonroad SI <=25 hp............       63,120           0.5           0.3      114,447           2.7           0.8
Nonroad SI >25 hp.............      273,082           2.1           1.1       43,527           1.0           0.3
Recreational SI...............        4,297           0.0           0.0       19,389           0.5           0.1
Commercial Marine Diesel C3...      184,275           1.4           0.8      514,881          12.3           3.5
Commercial Marine Other \c\...        5,979           0.0           0.0        4,020           0.1           0.0
Aircraft......................      165,018           1.3           0.7      258,102           6.2           1.8
                               --------------
    Total Nonroad.............    3,901,357          30            16      2,617,036          62.5          18
    Total Highway.............    9,060,923          70            37      1,566,902          37.5          11
                               --------------
    Total Mobile Sources......   12,962,279         100            53      4,183,938         100            29
    Stationary Point and Area    11,449,752  ............          47     10,320,361  ............          71
     Sources \d\..............
                               ==============
        Total Man-Made Sources   24,412,031  ............  ............   14,504,300  ............  ............
        Mobile Source Percent   ...........          53    ............  ...........          29    ............
         of Total.............
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ These are 48-state inventories. They do not include Alaska and Hawaii.
\b\ Marine diesel includes commercial C1, commercial C2, recreational up to 30 liters per cylinder displacement;
  it also includes marine diesel engines <37 kW that were included in the Tier 1 and Tier 2 standards for land-
  based nonroad engines.
\c\ Steam and coal-powered marine vessels.
\d\ Does not include the effects of the Proposed Rule to Reduce Interstate Transport of Fine Particulate Matter
  and Ozone (Interstate Air Quality Rule). 69 FR 4566, January 30, 2004. See http://www.epa.gov/interstateairquality/rule.html.


     Table IV.A-2.--Annual Diesel PM2.5 Baseline Emission Levels for Mobile and Other Source Categories a b
----------------------------------------------------------------------------------------------------------------
                                                  1996                                     2030
                               ---------------------------------------------------------------------------------
           Category                           Percent of                               Percent of
                                 Short tons     mobile      Percent of    Short tons     mobile      Percent of
                                                source         total                     source         total
----------------------------------------------------------------------------------------------------------------
Diesel Marine \c\.............       18,705           4.7           4.6       17,526          27.0          25.4
Locomotives...................       22,266           5.6           5.5       11,599          17.9          16.8
                               --------------
    Subtotal of Affected             40,971          10.3          10.1       29,125          44.9          42.2
     Categories \d\...........
Land-Based Nonroad Diesel.....      186,507          47.2          45.8       21,698          33.5          31.4
                               ==============
    Total Nonroad Diesel......      227,478          58            56         50,823          78            74
    Total Highway Diesel......      167,384          42            41         13,948          22            20
                               --------------
    Total Mobile Source Diesel      394,862         100            97         64,771         100            94
Stationary Point and Area            12,199  ............           3          4,231  ............           6
 Source Diesel \e\............
                               ==============
        Total Man-Made Diesel       407,061  ............  ............       69,002  ............  ............
         Sources..............
                               ==============
        Mobile Source Percent        \f\ 97  ............  ............       \f\ 94  ............  ............
         of Total.............
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ These are 48-state inventories. They do not include Alaska and Hawaii.
\b\ Excludes natural and miscellaneous sources.
\c\ Marine diesel includes commercial C1, commercial C2, recreational up to 30 liters per cylinder displacement;
  it also includes marine diesel engines <37 kW that were included in the Tier 1 and Tier 2 standards for land-
  based nonroad engines. It does not include commercial C3 vessels using residual fuel.
\d\ When total PM2.5 is considered, marine diesel engines and locomotives contributed 7.2% of mobile source
  PM2.5 in 1996. The contribution of these sources expected to be 10.4% of mobile source PM2.5 in 2030.
\e\ This category includes point sources burning either diesel, distillate oil (diesel), or diesel/kerosene
  fuel.
\f\ Percent.


[[Page 39287]]

B. Potential Costs

    The emission-control technologies we are considering for marine 
diesel engines and locomotives are already under development or in 
commercial use for highway and nonroad diesel engines. To estimate the 
costs of this prospective emission control program, we expect to start 
with the cost estimates we have established in previous rulemakings for 
highway and nonroad diesel engines. We will modify those estimates as 
needed to take into account the unique aspects of locomotive and marine 
applications. These include different usage characteristics, engine 
lifetimes and rebuild schedules, and sales volumes. Additional 
adjustment will be made to account for the physical and operating 
characteristics of locomotive engines and marine diesel engines, such 
as size, packaging, maintenance, duty cycle, and idling patterns. We 
encourage commenters to review the extensive information covering all 
aspects of engine costs contained in the highway and nonroad diesel 
engine program regulatory impact analyses, and to provide comments on 
cost-related issues that differentiate locomotives and marine engines 
from highway and land-based nonroad diesel engines. In addition, we are 
interested in cost information associated with potential retrofitting 
concepts, and in information about any unique costs associated with 
equipment redesign for the marine market.

V. Small Business Concerns/Regulatory Flexibility

    Pursuant to the Regulatory Flexibility Act (RFA, as amended by the 
Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 5 
U.S.C. 601 et seq.), we will perform an assessment of the impacts of 
the emission control program we are considering on small entities and 
will convene a Small Business Advocacy Review (SBAR) panel if the 
assessment indicates this is appropriate.
    We are also planning outreach efforts independent of the SBAR panel 
to obtain advice and recommendations from representatives of the small 
entities that would likely be directly affected by a proposed rule. We 
anticipate beginning this outreach effort in Summer 2004. We may 
contact some stakeholders prior to that time to gain as much 
information as possible about these entities to assist us in creating 
useful provisions for small businesses to utilize.
    We intend to offer similar regulatory flexibility provisions for 
small entities that were offered in previous locomotive, marine, and 
other nonroad rules to help decrease the burden on small entities while 
still meeting the environmental goals of the Agency. We also invite 
recommendations on additions and/or modifications of prior flexibility 
provisions for this rule.
    The following is a list of the entities that we believe will be 
regulated by this rule, and their corresponding size standards, as set 
out by the Small Business Administration (SBA):

 
------------------------------------------------------------------------
                                          Size standards
            Category/industry               (number of    NAICS \a\ code
                                            employees)
------------------------------------------------------------------------
Engine manufacturers (including engine             1,000      \b\ 333618
 marinizers, rebuilders, and
 remanufacturers).......................
Locomotive manufacturers and rebuilders.           1,000      \c\ 336510
Ship builders and repairers.............           1,000          336611
Boat builders...........................             500         336612
------------------------------------------------------------------------
\a\ NAICS is the North American Industry Classification System.
\b\ Diesel engine manufacturers, specifically locomotive engines, are
  classified in the NAICS system as ``Other Equipment Manufacturing''.
\c\ Locomotive manufacturers and rebuilders are classified in the NAICS
  system as ``Railroad Rolling Stock Manufacturers''.

VI. Public Participation

    We are committed to a full and open regulatory process with input 
from a wide range of interested parties and request comment on all 
aspects of this Advance Notice of proposal. Opportunities for input 
include a public comment period on this ANPRM. This section describes 
how you can participate in this process.

A. How Do I Submit Comments?

    With today's action, we open a comment period for this advance 
notice. We will accept comments until by August 30, 2004. We encourage 
comment on all issues raised here, and on any other issues you consider 
relevant. The most useful comments are those supported by appropriate 
and detailed rationales, data, and analyses. All comments, with the 
exception of proprietary information, should be directed to the docket 
(see ADDRESSES).
    If you wish to submit proprietary information for consideration, 
you should clearly separate such information from other comments by (1) 
labeling proprietary information ``Confidential Business Information'' 
and (2) sending proprietary information directly to the contact person 
listed (see FOR FURTHER INFORMATION CONTACT) and not to the public 
docket. This will help ensure that proprietary information is not 
inadvertently placed in the docket. If you want us to use a submission 
of confidential information as part of the basis for a proposal, then a 
nonconfidential version of the document that summarizes the key data or 
information should be sent to the docket. We will disclose information 
covered by a claim of confidentiality only to the extent allowed and in 
accordance with the procedures set forth in 40 CFR part 2. If you don't 
identify information as confidential when we receive it, we may make it 
available to the public without notifying you.

B. Will There Be a Public Hearing?

    We will not hold a public hearing for the issues raised in this 
Advance Notice of proposal. However, we will hold a hearing for the 
issues raised in our future Notice of Proposed Rulemaking, and will 
provide information about that hearing when we publish the NPRM.

VII. Statutory and Executive Order Reviews

A. Administrative Designation and Regulatory Analysis (Executive Order 
12866)

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of this Executive Order. The Executive Order 
defines a ``significant regulatory action'' as any regulatory action 
that is likely to result in a rule that may:
     Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or

[[Page 39288]]

State, Local, or Tribal governments or communities;
     Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
     Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
     Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This Advance Notice was submitted to OMB for review. Any written 
comments from OMB and any EPA response to OMB comments are in the 
public docket for this Notice.

B. Regulatory Flexibility Act

    Section 605 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 
et seq. requires the Administrator to assess the economic impact of 
proposed rules on small entities. The Small Business Regulatory 
Enforcement Fairness Act (SBREFA) of 1996, Public Law 104-121, amended 
the RFA to strengthen its analytical and procedural requirements and to 
ensure that small entities are adequately considered during rule 
development. The Agency accordingly requests comment on the potential 
impacts on a small business of the program described in this notice. 
These comments will help the Agency meet its obligations under SBREFA 
and will suggest how EPA can minimize the impacts of this rule for 
small companies that may be adversely affected.
    Depending on the number of small entities identified prior to the 
proposal and the level of any contemplated regulatory action, we may 
convene a Small Business Advocacy Review Panel under section 609(b) of 
the Regulatory Flexibility Act as amended by SBREFA. The purpose of the 
Panel (or multiple Panels, as necessary) would be to collect the advice 
and recommendations of representatives of small entities that could be 
affected by the eventual rule. If we determine that a panel is not 
warranted, we would intend to work on a less formal basis with those 
small entities identified.
    We request information on small entities potentially affected by 
this rulemaking. Information on company size, number of employees, 
annual revenues and product lines would be especially useful. 
Confidential business information may be submitted as described in 
Section VI.

C. Paperwork Reduction Act

    We will prepare information collection requirements as part of our 
proposed rule and submit them for approval to the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq.

D. Intergovernmental Relations

1. Unfunded Mandates Reform Act
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``federal mandates'' that 
may result in expenditures to state, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    As part of the development of our Notice of Proposed Rulemaking, we 
will examine the impacts of our proposal with respect to expected 
expenditures by state, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year.
2. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)
    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``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.''
    As part of the development of our Notice of Proposed Rulemaking, we 
will examine the impacts of our proposal with respect to tribal 
implications.

E. 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 (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    As part of the development of our Notice of Proposed Rulemaking, we 
will examine the availability and use of voluntary consensus standards.

F. Protection of Children (Executive Order 13045)

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 F.R. 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.
    As part of the development of our Notice of Proposed Rulemaking, we 
will

[[Page 39289]]

examine the impacts of our proposal with respect to whether it concerns 
an environmental health or safety risk that we have reason to believe 
may have a disproportionate effect on children.

G. Federalism (Executive Order 13132)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under Section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    Section 4 of the Executive Order contains additional requirements 
for rules that preempt State or local law, even if those rules do not 
have federalism implications (i.e., the rules will not have substantial 
direct effects on the States, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government). Those 
requirements include providing all affected State and local officials 
notice and an opportunity for appropriate participation in the 
development of the regulation. If the preemption is not based on 
express or implied statutory authority, EPA also must consult, to the 
extent practicable, with appropriate State and local officials 
regarding the conflict between State law and Federally protected 
interests within the agency's area of regulatory responsibility.
    As part of the development of our Notice of Proposed Rulemaking, we 
will examine the impacts of our proposal with respect to 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.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

H. Energy Effects (Executive Order 13211)

    We anticipate that our proposal will not be 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. The proposed standards will have for their aim the reduction of 
emission from certain nonroad engines, and have no effect on fuel 
formulation, distribution, or use.

I. Plain Language

    This document follows established EPA practices regarding the use 
of plain language in government writing. To read the text of the 
regulations, it is also important to understand the organization of the 
Code of Federal Regulations (CFR). The CFR uses the following 
organizational names and conventions.

Title 40--Protection of the Environment
Chapter I--Environmental Protection Agency
Subchapter C--Air Programs. This contains parts 50 to 99, where the 
Office of Air and Radiation has usually placed emission standards for 
motor vehicle and nonroad engines.
Subchapter U--Air Programs Supplement. This contains parts 1000 to 
1299, where we intend to place regulations for air programs in future 
rulemakings.
Part 1045--Control of Emissions from Marine Spark-ignition Engines and 
Vessels.
Part 1068--General Compliance Provisions for Engine Programs. 
Provisions of this part apply to everyone.

    Each part in the CFR has several subparts, sections, and 
paragraphs. The following illustration shows how these fit together.

Part 1045
Subpart A
Section 1045.1
(a)
(b)
(1)
(2)
(I)
(ii)
(A)
(B)

    A cross reference to Sec.  1045.1(b) in this illustration would 
refer to the parent paragraph (b) and all its subordinate paragraphs. A 
reference to ``Sec.  1045.1(b) introductory text'' would refer only to 
the single, parent paragraph (b).

List of Subjects

40 CFR Part 92

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Confidential business information, Imports, 
Incorporation by reference, Labeling, Penalties, Railroads, Reporting 
and recordkeeping requirements, Warranties.

40 CFR Part 94

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Confidential business information, Imports, 
Incorporation by reference, Labeling, Penalties, Vessels, Reporting and 
recordkeeping requirements, Warranties.

    Dated: May 11, 2004.
Michael O. Leavitt,
Administrator.
[FR Doc. 04-11294 Filed 6-28-04; 8:45 am]
BILLING CODE 6560-50-P