EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
1
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
86
[
OAR­
2004­
0072;
AMS­
FRL­
XXX­
X]

RIN
XXX­
XXXX
Control
of
Emissions
of
Air
Pollution
from
New
Motor
Vehicles:
In­
Use
Testing
for
Heavy­
Duty
Diesel
Engines
and
Vehicles
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
Rule.

SUMMARY:
We
are
establishing
a
manufacturer­
run,
in­
use
emissions
testing
program
for
2007
and
later
model
year
heavy­
duty
diesel
vehicles.
The
ground­
breaking
in­
use
test
program
will
require
engine
manufacturers
to
measure
exhaust
emissions
from
their
diesel
engines
using
portable
emissions
measurement
systems.
Also
for
the
first
time,
all
manufacturers
will
be
regularly
providing
EPA
with
a
significant
quantity
of
emissions
data
generated
from
engines
used
in
regular
service,
which
EPA
will
evaluate
to
ensure
the
engines
comply
with
specified
emissions
requirements.
The
rule
is
a
result
of
an
agreement
between
EPA
and
the
Engine
Manufacturers
Association.
This
rule
advances
EPA's
clean
diesel
activities
by
helping
to
ensure
that
the
benefits
of
more
stringent
emission
standards
are
realized
under
real­
world
driving
conditions.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
2
DATES:
This
final
rule
is
effective
[
insert
date
60
days
after
publication
in
the
Federal
Register].
The
incorporation
by
reference
of
certain
publications
listed
in
this
regulation
is
approved
by
the
Director
of
the
Federal
Register
as
of
[
insert
date
60
days
after
publication
in
the
Federal
Register].

ADDRESSES:
EPA
has
established
a
docket
for
this
action
under
Docket
ID
No.
OAR­

2004­
0074.
All
documents
in
the
docket
are
listed
in
the
EDOCKET
index
at
http://
www.
epa.
gov/
edocket.
This
rule
relies
in
part
on
information
related
to
our
November
2002
final
rule,
which
can
be
found
in
Public
Docket
A­
2000­
01.
This
docket
is
incorporated
by
reference
into
the
docket
for
this
action.
Although
listed
in
the
index,

some
information
is
not
publicly
available,
i.
e.,
CBI
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
is
not
placed
on
the
Internet
and
will
be
publicly
available
only
in
hard
copy
form.
Publicly
available
docket
materials
are
available
either
electronically
in
EDOCKET
or
in
hard
copy
at
the
Air
Docket
in
the
EPA
Docket
Center,
EPA/
DC,
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW,
Washington,
DC.
The
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Public
Reading
Room
is
(
202)
566­
1744,
and
the
telephone
number
for
the
Air
Docket
is
(
202)
566­
1742.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
3
FOR
FURTHER
INFORMATION
CONTACT:
U.
S.
EPA,
Office
of
Transportation
and
Air
Quality,
Assessment
and
Standards
Division
hotline
at
(
734)
214­
4636
or
asdinfo@
epa.
gov.,
or
alternatively
Carol
Connell
(
734)
214­
4349
or
connell.
carol@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

Regulated
Entities
This
action
will
affect
you
if
you
produce
or
import
new
heavy­
duty
diesel
engines
which
are
intended
for
use
in
highway
vehicles
such
as
trucks
and
buses,
or
produce
or
import
such
highway
vehicles,
or
convert
heavy­
duty
vehicles
or
heavy­
duty
engines
used
in
highway
vehicles
to
use
alternative
fuels.

The
following
table
gives
some
examples
of
entities
that
are
likely
to
be
affected
regulations.
But
because
these
are
only
examples,
you
should
carefully
examine
the
regulations
in
40
CFR
parts
86.
If
you
have
questions,
call
the
person
listed
in
the
FOR
FURTHER
INFORMATION
CONTACT
section
of
this
preamble:
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
4
Category
NAICS
codesa
SIC
codesb
Examples
of
potentially
regulated
entities
Industry.....
336112
3711
Engine
and
Truck
Manufacturers
336120
Industry.....
811112
7533
Commercial
Importers
of
Vehicles
and
Vehicle
Components
811198
7549
a
North
American
Industry
Classification
System
(
NAICS).

b
Standard
Industrial
Classification
(
SIC)
system
code.

This
list
is
not
intended
to
be
exhaustive,
but
rather
provides
a
guide
regarding
entities
likely
to
be
regulated
by
this
action.
To
determine
whether
particular
activities
may
be
regulated
by
this
action,
you
should
carefully
examine
the
regulations.
You
may
direct
questions
regarding
the
applicability
of
this
action
to
the
person
listed
in
"
FOR
FURTHER
INFORMATION
CONTACT."

B.
How
Can
I
Get
Copies
Of
This
Document
and
Other
Related
Information
?

1.
Docket.
EPA
has
established
an
official
public
docket
for
this
action
under
Docket
ID
No.
OAR­
2004­
0074.
The
official
public
docket
consists
of
the
documents
specifically
referenced
in
this
action,
any
public
comments
received,
and
other
information
related
to
this
action.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
5
include
Confidential
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
Documents
in
the
official
public
docket
are
listed
in
the
index
list
in
EPA's
electronic
public
docket
and
comment
system,
EDOCKET.
Documents
may
be
available
either
electronically
or
in
hard
copy.
Electronic
documents
may
be
viewed
through
EDOCKET.
Hard
copy
documents
may
be
viewed
at
the
EPA
Docket
Center,

(
EPA/
DC)
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW,
Washington,
DC.

Docket
in
The
EPA
Docket
Center
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Public
Reading
Room
is
(
202)
566­
1744.

This
rule
relies
in
part
on
information
related
to
our
November
2002
final
rule,

which
can
be
found
in
Public
Docket
A­
2000­
01.
This
docket
is
incorporated
by
reference
into
the
docket
for
this
action,
OAR­
2004­
0074.

2.
Electronic
Access.
You
may
access
this
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
"
Federal
Register"
listings
at
http://
www.
epa.
gov/
fedrgstr/
Or
you
can
go
to
the
federal­
wide
eRulemaking
site
at
www.
regulations.
gov.

An
electronic
version
of
the
public
docket
is
available
through
EDOCKET.
You
may
use
EDOCKET
at
http://
www.
epa.
gov/
edocket/
to
view
public
comments,
access
the
index
listing
of
the
contents
of
the
official
public
docket,
and
to
access
those
documents
in
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
6
the
public
docket
that
are
available
electronically.
Once
in
the
system,
select
"
search,"

then
key
in
the
appropriate
docket
identification
number.

Outline
of
This
Preamble
I.
Overview
A.
Summary
of
the
Rule
B.
Background
on
the
Origins
of
This
Rule
C.
Historical
Context
1.
Genesis
and
Description
of
NTE
Standards
2.
Current
EPA
In­
Use
NTE
Testing
3.
Plans
for
Nonroad
Diesel
Engine
In­
Use
NTE
Testing
D.
California's
Intent
to
Adopt
an
In­
Use
NTE
Test
Program
II.
Details
of
the
Rule
A.
Applicability
B.
Engine
Family
Selection
1.
Number
of
Engine
Families
2.
Treatment
of
Nonconforming
Engine
Families
3.
Small
or
Unavailable
Engine
Families
4.
Engine
Families
Unsuitable
for
Testing
C.
Phase
1
Testing
Scheme
1.
Focus
of
Initial
Testing
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
7
2.
Engine
Family
Evaluation
Criteria
and
Outcomes
D.
Phase
2
Testing
Scheme
1.
Initiation
and
Focus
of
Additional
Testing
2.
Number
of
Engines
and
Test
Conditions
E.
Vehicle
Pass
Criteria
F.
NTE
Threshold
Specification
1.
Not­
to­
Exceed
Standards
2.
Existing
In­
Use
Compliance
Margins
3.
New
In­
use
Measurement
Margin
for
Portable
Measurement
Systems
i.
Pilot
Program
Accuracy
Margins
ii.
Final
Program
Accuracy
Margins
G.
Considerations
in
Deciding
on
Remedial
Action
1.
Manufacturers'
Supplemental
Information
2.
EPA's
Testing
and
Supplemental
Data
3.
Other
Information
H.
Quantity
of
Data
Collected
I.
Screening,
Adjustment,
and
Mileage
and
of
Test
Vehicles
J.
Test
Conditions
K.
Reporting
Requirements
1.
Comprehensive
In­
Use
Testing
Reports
2.
Notification
of
Vehicle
Failures
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
8
3.
Carve
Outs,
Deficiencies,
or
Other
NTE
Control
Area
Exclusions
4.
Incomplete,
Invalid,
or
Voluntary
Tests
L.
Measurement
of
Emission
1.
Pollutants
and
Other
Emissions
2.
Portable
Emission
Measurement
Systems
 
Status
and
Availability
3.
Measurement
Accuracy
Margin
Development
Program
M.
Pilot
Program
N.
Public
Availability
of
In­
Use
Testing
Data
O.
Implications
for
Other
EPA
Programs
1.
EPA
Testing
and
Supplemental
Information
2.
Selective
Enforcement
Audit
(
SEA)
Testing
3.
Deterioration
Factor
(
DF)
Testing
P.
Limitations
of
Warranty
Claims
III.
Economic
Impact
IV.
Public
Participation
V.
Statutory
and
Executive
Order
Review
VI.
Statutory
Provisions
and
Legal
Authority
I.
Overview
This
section
summarizes
the
manufacturer­
run,
in­
use
Not­
to­
Exceed
(
NTE)

testing
program
for
on­
highway,
heavy­
duty
diesel
vehicles
and
engines.
It
also
contains
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
9
background
on
the
genesis
of
the
rule,
an
overview
of
the
origin
and
application
of
EPA's
NTE
emission
standards,
and
a
brief
description
of
our
ongoing
in­
use
NTE.
More
detailed
information
on
the
NTE
standards
for
heavy­
duty
diesel
engines
is
contained
in
Section
II.
F.
1.
of
this
preamble.

A.
Summary
of
the
Rule
We
are
establishing
a
manufacturer­
run,
in­
use
NTE
testing
program
for
vehicles
with
heavy­
duty
diesel
engines,
beginning
in
calendar
year
2005.
The
entire
program
is
being
adopted
largely
as
we
proposed
in
the
Federal
Register
on
June
10,
2004
(
69
FR
32804)
and
June
21,
2004
(
69
FR
34326).
There
will
be
a
pilot
program
in
calendar
years
2005
and
2006
for
gaseous
pollutants
(
i.
e.,
nonmethane
hydrocarbons
(
NMHC),

carbon
monoxide
(
CO),
and
oxides
of
nitrogen
(
NOx)).
In
calendar
years
2006
and
2007,

there
will
be
a
pilot
program
for
particulate
matter
(
PM).
Subsequent
to
these
programs,

the
fully
enforceable
in­
use
test
program
begins.
Therefore,
the
enforceable
program
starts
in
2007
for
gaseous
pollutants
and
2008
for
PM.
In
those
years,
the
test
program
will
apply
to
2007
and
later
model
year
engines.

This
testing
program
addresses
a
long
standing
need
to
monitor
the
emissions
performance
of
the
engines
installed
in
these
on­
highway
vehicles
when
they
are
operated
under
a
wide
range
of
real
world
conditions.
It
is
specifically
intended
to
monitor
compliance
with
the
NTE
exhaust
emission
standards
and
to
help
ensure
that
heavy­
duty
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
10
diesel
engines
will
comply
with
all
applicable
emission
standards
(
e.
g.,
including
those
based
on
the
Federal
Test
Procedure
(
FTP))
throughout
their
useful
lives.
Background
on
our
NTE
standards
is
presented
in
sections
I.
B.
and
C.
of
this
Preamble.

The
new
testing
program
will,
for
the
first
time,
require
engine
manufacturers
to
assess
in­
use
exhaust
emissions
from
heavy­
duty
diesel
vehicles
using
onboard,
portable
emission
measurement
systems
during
typical
operation
on
the
road.
Previously,
engine
emissions
testing
involved
removing
the
engine
from
the
vehicle
and
testing
the
engine
in
a
laboratory
on
an
engine
dynamometer.
Starting
in
the
mid­
1990s,
EPA
facilitated
research
into
portable
systems
by
developing
and
using
prototype
systems
on
a
more
limited
basis
in
its
compliance
programs.
Vehicles
were
instrumented
with
portable
systems
to
measure
their
emissions
performance
during
real­
world
operating
conditions.
It
became
clear
that
these
systems
offered
advantages
over
conventional
approaches
to
assess
in­
use
exhaust
emissions
from
engines
for
design
improvement,
research,
modeling,
and
compliance
purposes.

Under
the
program,
we
will
designate
a
certain
number
of
heavy­
duty
diesel
engine
families
for
testing.
Generally,
no
more
than
25
percent
of
a
manufacturer's
engine
families
would
be
designated
in
any
single
year.
We
expect
manufacturers
will
use
their
existing
customer
relationships
and
create
new
lines
of
communication
with
customers
to
recruit
appropriate
test
vehicles
from
fleets
or
individual
owners.
Each
selected
vehicle
will
be
equipped
with
a
portable
emission
measurement
system
and
driven
by
its
normal
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
11
operator,
with
a
normal
payload,
over
its
regular
driving
route.
All
data
and
test
results
will
be
reported
to
EPA
on
a
regular
basis.
The
manufacturer
of
a
designated
heavy­
duty
engine
family
will
pay
for
all
of
the
expenses
associated
with
the
planning,
vehicle
procurement,
testing,
and
data
reporting.

The
test
program
is
composed
of
two
phases.
In
the
first
phase
of
testing
(
Phase
1)
the
manufacturer
will
test
a
minimum
of
five
and
a
maximum
of
10
vehicles
per
engine
family
selected
for
testing.
If
five
out
of
the
first
five
vehicles,
or
five
out
of
the
first
six
vehicles
pass
a
specified
vehicle
pass
criteria,
or
vehicle
testing
criteria,
no
further
testing
or
other
data
relating
to
that
diesel
engine
family
will
be
required
from
the
manufacturer
that
year.
However,
we
may
choose
that
engine
family
for
testing
again
in
a
later
year.
If
the
above
conditions
are
not
met,
then
a
total
of
10
vehicles
will
be
tested
in
Phase
1.
If
eight
out
of
the
10
vehicles
pass
the
vehicle
testing
criteria,
no
further
testing
or
other
data
relating
to
that
diesel
engine
family
will
be
required
from
the
manufacturer
for
that
year.

In
all
other
cases,
we
will
decide
on
a
course
of
action
depending
on
the
number
of
vehicles
from
the
designated
engine
family
that
fail
to
pass
the
vehicle
testing
criteria
and
other
factors.
In
making
our
decision,
we
will
thoroughly
review
the
test
results,
consult
with
the
engine
manufacturer,
allow
the
manufacturer
to
provide
additional
data,
and
consider
other
pertinent
information.
The
action
may
include,
but
is
not
limited
to,
one
of
the
following:
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
12
7.
No
further
action
because
no
significant
nonconformance
issues
are
indicated;

8.
Initiate
the
second
phase
of
testing
(
Phase
2);
or
9.
Seek
some
form
of
remedial
action.

If
five
or
fewer
of
the
Phase
1
test
vehicles
satisfy
the
vehicle
pass
criteria,
EPA
may
require
the
manufacturer
to
conduct
Phase
II
testing.
If
only
six
or
seven
of
the
Phase
I
test
vehicles
pass
the
vehicle
pass
criteria,
EPA
may
require
the
manufacturer
to
conduct
Phase
II
testing
under
these
regulations
if
the
manufacturer
agrees
to
perform
such
testing.
However,
if
Phase
2
testing
is
conducted
for
any
reason,
even
if
the
manufacturer
elects
to
pursue
the
next
phase
of
testing
voluntarily,
we
may
direct
that
up
to
10
additional
vehicles
be
tested.
In
this
phase,
we
may
also
focus
testing
on
one
or
more
engine
configurations
within
the
engine
family.
Additionally,
we
may
specify
certain
driving
routes
or
other
driving
conditions
(
e.
g.,
geographic
conditions
or
time
of
year).

The
purpose
of
these
additional
specifications
is
to
better
understand
how
widespread
or
under
what
conditions
the
Phase
1
test
vehicles
are
failing
to
pass
the
vehicle
pass
criteria.

In
those
instances,
the
specifications
would
be
based
on
the
Phase
1
test
conditions
that
indicated
a
potential
nonconformity.

As
with
Phase
1
testing,
any
remedial
action
we
may
choose
to
pursue
based
on
Phase
2
testing
will
be
made
only
after
a
thorough
review
of
the
test
results,
consultation
with
the
engine
manufacturer,
and
consideration
of
other
pertinent
information.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
13
The
in­
use
testing
program
is
primarily
designed
as
an
information­
gathering
process
that
will
inform
EPA's
decision­
making.
The
results
of
in­
use
testing
for
any
particular
engine
family
will
not
necessarily
lead
to,
or
necessarily
insulate
an
engine
family
from,
appropriate
remedial
actions,
depending
on
the
particular
results
of
the
testing
and
other
information
in
EPA's
possession.
However,
EPA
believes
that
the
results
of
the
inuse
testing
and
information
gathered
by
the
program
will
be
a
critical
resource
for
EPA
in
determining
how
to
direct
our
limited
resources.

We
expect
that
the
wealth
of
in­
use
test
data
generated
by
the
program
will
have
a
number
of
valuable
uses
in
addition
to
monitoring
heavy­
duty
diesel
engines
for
NTE
compliance
purposes
under
the
program.
For
example,
though
EPA
would
not
engage
in
routine
NTE
testing
of
engines
or
engine
families
that
satisfy
the
Phase
1
test
criteria
unless
new
information
indicates
that
a
nonconformity
exists,
we
may
use
the
in­
use
data
along
with
other
information
to
make
independent
evaluations
about
the
possible
need
to
pursue
further
testing
or
actions.
We
may
also
use
the
information
in
the
development
of
in­
use
emission
factors
for
emissions
and
air
quality
modeling.
Further,
manufacturers
have
told
us
that
they
expect
the
proposed
program
will
fortify
the
traditional
laboratorybased
engine
development
process.
This
will
be
done
by
enhancing
a
manufacturer's
ability
to
evaluate
the
performance
of
the
engine
and
emissions
control
system
under
real
world
operating
conditions
and
use,
the
results
of
which
may
be
used
to
create
cleaner
and
more
durable
future
engine
designs.
Finally,
the
in­
use
test
data
will
also
be
available
to
the
public
for
review
and
analysis.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
14
As
previously
described,
the
in­
use
NTE
testing
program
will
be
fully
enforceable
beginning
in
2007
for
gaseous
pollutants
and
2008
for
PM.
To
ensure
a
successful
launch
of
this
new
program,
there
is
a
mandatory
pilot
program
for
gaseous
emissions
in
calendar
years
2005
and
2006,
and
2006
and
2007
for
PM
using
only
the
first
phase
(
Phase
1)
of
testing.
During
these
years
both
EPA
and
the
heavy­
duty
diesel
engine
manufacturers
will
gain
valuable
experience
with
the
in­
use
testing
protocols,
and
the
generation,

interpretation,
and
reporting
of
in­
use
emissions
data.
If
an
engine
family
fails
to
meet
the
vehicle
pass
requirements
of
Phase
1
testing
under
the
pilot
program,
we
will
not
pursue
any
form
of
remedial
action
based
solely
on
that
data.
However,
we
may
utilize
such
information
in
conjunction
with
our
own
test
data
and
other
information
to
assess
or
pursue
any
enforcement
or
remedial
action
that
otherwise
may
be
authorized
during
that
time.

The
success
of
this
testing
program
depends
on
ensuring
that
the
new
onboard,

portable
measurement
systems
are
correctly
measuring
exhaust
emissions
in
the
field.
To
this
end,
we
are
establishing
measurement
"
accuracy"
margins
for
these
new
systems.

The
purpose
of
the
margins
is
to
account
for
the
emissions
measurement
variability
associated
with
these
units
in
the
field.
During
the
pilot
program
years,
manufacturers
will
use
interim
margins
that
we
believe
represent
an
upper
bound
of
the
possible
instrumentation
variability
based
on
our
experience
with
portable
and
laboratory
measurement
systems.
Accuracy
margins
for
the
fully
enforceable
program
are
being
developed
through
a
comprehensive
research,
development,
and
demonstration
program.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
1
See
"
Memorandum
of
Agreement,
Program
to
Develop
Emission
Measurement
Accuracy
Margins
for
Heavy­
Duty
In­
Use
Testing,"
dated
May
XX,
2005.
A
copy
of
the
memorandum
is
contained
in
the
Final
Technical
Support
Document
accompanying
this
final
rule.

15
The
program
is
described
in
a
Memorandum
of
Agreement
1
and
summarized
in
section
II.

L.
of
this
preamble.

B.
Background
on
the
Origins
of
This
Rule
On
October
6,
2000,
we
published
a
final
rule
that
promulgated
new
emission
standards
for
on­
highway
heavy­
duty
engines.
See
65
FR
59896.
The
final
rule
included
new
standards,
applicable
to
2007
and
later
model
year
heavy­
duty
diesel
engines,
called
NTE
standards.
These
standards
are
designed
to
apply
under
any
conditions
reasonably
expected
to
occur
during
normal
vehicle
use.
The
test
procedure
for
the
NTE
standards
is
different
from
most
previous
test
procedures
in
that
it
is
not
based
on
a
rigidly
timed
test
cycle,
but
instead
allows
testing
at
a
wide,
though
bounded,
range
of
engine
and
ambient
conditions
that
can
occur
in
normal
vehicle
operations.

These
NTE
standards,
as
well
as
other
provisions
of
the
final
rule,
were
particularly
designed
to
ensure
that
engines
and
vehicles
manufactured
to
meet
the
FTP
standards
over
the
engine
certification
test
cycle
in
the
laboratory
continued
to
effectively
control
emissions
under
any
conditions
reasonably
expected
to
occur
during
normal
vehicle
use.
The
final
rule
described
our
concerns
regarding
additional
factors
that
may
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
2
See
International
Truck
et
al.
v.
EPA,
(
D.
C.
Cir
Nos.
00­
1510
and
00­
1512);
EMA
et
al
v.
EPA
(
D.
C.
Cir.
Nos.
01­
1129
and
02­
1080);
International
Truck
v.
EPA,
No.
01­
1137;
EMA
v.
EPA,
(
D.
C.

Cir.
No.
00­
1066);
and
EMA
v.
EPA,
(
D.
C.
Cir.
No.
03­
1007)

16
jeopardize
the
emission
reductions
expected
in­
use
from
the
standards
promulgated
in
that
rule.
See
65
FR
at
59910
(
October
6,
2000).
Among
these
factors
was
the
absence
of
an
effective
in­
use
compliance
program
for
heavy
duty
engines
and
vehicles.
We
noted
that
we
had
received
broad
support
from
states,
environmental
organizations,
and
industry
to
move
forward
with
developing
a
proposal
to
address
this
issue.
The
Engine
Manufacturers
Association
(
EMA)
committed
to
work
diligently
and
cooperatively
with
EPA
and
the
California
Air
Resources
Board
(
CARB)
to
resolve
the
open
questions
in
a
timely
fashion.
See
64
FR
58472,
58514
(
October
29,
1999).

EMA
and
certain
individual
engine
manufacturers
challenged
EPA's
adoption
of
NTE
standards
in
several
rules.
2
EPA,
CARB
and
the
engine
manufacturers,
as
well
as
state
and
environmental
organizations,
engaged
in
lengthy
and
ultimately
productive
discussions
to
settle
these
challenges
and
to
go
forward
with
a
regulatory
program
that
included
robust
measures
to
ensure
that
emission
controls
implemented
to
meet
EPA
and
CARB
standards
remain
effective
under
all
normal
vehicle
operation.
One
result
of
these
discussions
was
the
identification
of
the
basic
program
elements
for
a
manufacturer
run,

in­
use
NTE
testing
program,
and
an
agreement
to
go
forward
with
a
rulemaking
to
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
3
See
Final
Settlement
Agreement,
dated
June
3,
2003,
in
the
cases
cited
above.

17
implement
such
a
program
for
on­
highway
heavy­
duty
diesel
engines.
3
Today's
action
essentially
completes
that
rulemaking
process.

C.
Historical
Context
1.
Genesis
and
Description
of
NTE
Standards
Traditionally,
heavy­
duty
diesel
vehicles
and
engines
have
been
certified
to
exhaust
emission
standards
in
the
laboratory.
More
specifically,
the
engine
is
tested
separately
from
the
vehicle
using
an
engine
dynamometer
and
a
prescribed
"
driving
cycle."

Monitoring
for
compliance
with
the
applicable
emission
standards
during
the
life
of
these
vehicles
(
i.
e.,
in­
use)
was
also
determined
by
removing
the
engine
from
the
vehicle
and
then
testing
it
using
the
same
laboratory
measurement
procedures.
Several
years
ago
we
became
concerned
that
in­
use
emissions
might
inappropriately
exceed
the
applicable
standards
when
engines
were
operated
under
conditions
not
found
during
traditional
laboratory
testing
(
i.
e.,
off­
cycle
emissions).
An
investigation
into
off­
cycle
emissions
performance
confirmed
that
advances
in
engine
technology
had
allowed
some
manufacturers
to
design
engines
with
control
strategies
which
resulted
in
substantially
greater
levels
of
emissions
during
typical
real­
world
operating
conditions
than
were
emitted
during
the
laboratory
testing
cycle
required
for
certification.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
4
Torque
is
a
measure
of
rotational
force.
The
torque
curve
for
an
engine
is
determined
by
an
engine
"
mapping"
procedure
specified
in
the
Code
of
Federal
Regulations.
A
graphical
representation
of
the
NTE
control
area
is
contained
in
the
Technical
Support
Document
accompanying
this
proposed
rule.

18
To
close
the
gap
between
laboratory
and
real
world
emissions
performance,
and
to
deter
manufacturers
from
using
such
strategies
in
the
future,
we
developed
NTE
emission
standards
for
heavy­
duty
diesel
engines.
The
NTE
requirements
establish
an
area
or
zone
under
the
torque
curve
of
an
engine
where
emissions
must
not
exceed
a
specified
value
for
any
of
the
regulated
pollutants.
4
The
provisions
also
define
a
specific
range
of
operating
conditions,
i.
e.,
temperature,
altitude,
and
humidity.
The
test
itself
does
not
involve
a
specific
driving
cycle
of
any
specific
length,
i.
e.,
mileage
or
time,
rather
it
involves
all
driving
that
could
occur
within
the
bounds
of
the
NTE
control
area.
The
vehicle
(
or
engine)
is
operated
under
conditions
that
may
reasonably
be
expected
to
be
encountered
in
normal
vehicle
operation
and
use,
including
operation
under
steady­
state
or
transient
conditions
and
under
varying
ambient
conditions.
Within
the
NTE
control
area,
emissions
must
not
exceed
a
specified
multiple
of
the
underlying
FTP
standards.
For
heavy­
duty
diesel
engines,
this
multiple
is
generally
1.25
or
1.50
times
the
applicable
FTP
standards.

Initially,
the
NTE
requirements
were
a
key
provision
in
consent
decrees
with
several
manufacturers
of
heavy­
duty
diesel
engines
that
resulted
from
the
investigation
described
above.
This
new
requirement
became
effective
in
1998
for
most
manufacturers
involved
in
those
consent
decrees,
and
by
November
2002
had
been
applied
for
such
manufacturers
to
the
NOx
standards
set
to
go
into
effect
in
model
year
2004.
NTE
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
5
The
use
of
NTE
testing
as
a
screening
tool
for
2004­
2006
on­
highway
heavy­
duty
diesel
engines
is
discussed
in
Advisory
Circular
24­
3.
The
final
rule
applying
the
NTE
to
2007
and
model
year
engines
is
published
at
65
FR
59896
(
October
6,
2000).
Other
final
rules
promulgated
by
EPA
extended
the
NTE
approach
to
new
marine
compression­
ignition
engines
at
or
above
37
horsepower,
64
FR
73300
(
December
29,
1999)
and
67
FR
68242
(
November
8,
2002);
and
to
a
new
and
more
stringent
phase
of
onhighway
heavy
duty
engine
standards
66
FR
5002
(
January
18,
2001).

19
requirements
are
currently
being
used
as
a
screening
tool
for
2004
through
2006
model
year
engines
not
covered
by
the
consent
decrees.
The
NTE
requirements
will
be
mandatory
for
all
2007
and
later
heavy­
duty
diesel
engines.
We
also
promulgated
NTE
standards
for
certain
other
mobile
sources.
5
The
NTE
test
can
be
conducted
in
an
emissions
testing
laboratory
using
an
appropriate
dynamometer
or
while
the
vehicle
is
being
used
on
the
road.
It
is
this
last
feature
that
makes
NTE
testing
a
very
powerful
in­
use
compliance
monitoring
tool.

Inuse
testing
and
compliance
become
much
easier
with
the
NTE
standards
since
emissions
may
be
sampled
during
normal
vehicle
use
on
the
road
using
portable
emission
measurement
systems.
As
already
mentioned,
traditional
laboratory
engine
testing
over
a
very
specific
driving
schedule
requires
the
engine
be
removed
from
the
vehicle
rendering
in­
use
testing
prohibitively
cumbersome
and
expensive.
Further,
engine­
based
testing
cannot
account
for
the
drive
train
and
sensor
interactions
which
occur
during
normal
vehicle
operation.
As
such,
testing
during
normal
vehicle
use,
using
an
objective
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
20
numerical
standard,
makes
enforcement
easier
and
provides
more
certainty
of
what
is
occurring
in­
use
versus
a
fixed
laboratory
procedure.

2.
Current
EPA
In­
Use
NTE
Testing
We
have
been
conducting
our
own
in­
use
NTE
testing
of
heavy­
duty
diesel
engines
for
the
past
four
years.
Over
that
period,
an
average
of
40
on­
highway
vehicles
were
tested
annually.
Vehicles
are
procured
through
the
voluntary
participation
of
commercial
and
municipal
fleets
and
emissions
are
tested
during
normal
service
operation.

Portable
emission
measurement
systems
are
installed
on­
site
at
the
fleet's
facility
before
the
vehicle
begins
its
service
day.
EPA
uses
a
prototype
portable
sampling
system
which
measures
hydrocarbons
(
HC),
carbon
monoxide
(
CO),
and
oxides
of
nitrogen
(
NOx).
Our
experience
with
this
program
has
aided
us
in
developing
today's
final
rule
for
a
manufacturer­
run,
in­
use
NTE
test
program.

3.
Plans
for
Nonroad
Diesel
Engine
In­
Use
NTE
Testing
On
June
29,
2004,
we
published
NTE
requirements
that
accompany
our
new
transient­
cycle
emission
standards
for
nonroad
diesel
engines
(
69
FR
38957).
This
new
test
cycle
will
be
phased
into
the
certification
requirements
between
2011
and
2013,

depending
on
an
engine's
horsepower
rating.
The
NTE
provisions
are
similar
to
those
described
in
this
notice
for
on­
highway
heavy­
duty
diesel
engines.
Presently,
we
are
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
21
developing
an
outline
for
a
proposed
manufacturer­
run,
in­
use
NTE
test
program
for
nonroad
diesel
engines
covered
by
the
new
requirements.
We
expect
this
program
will
have
similar
characteristics
to
today's
rule,
but
will
address
some
unique
issues
pertaining
to
the
nonroad
market.
Among
these
are
such
things
as
the
widely
varying
power
ranges
of
nonroad
engines
(
including
those
much
smaller
and
much
bigger
than
highway
engines),

and
broad
array
of
equipment
applications
that
may
use
the
same
engine
type
or
model.

We
expect
the
program
to
have
a
pilot
program
similar
to
the
pilot
program
in
today's
rule
and
to
be
initiated
consistent
with
the
introduction
of
emission
control
requirements
for
nonroad
engines
built
in
conformance
with
the
new
standards,
which
are
based
on
aftertreatment.
The
resulting
implementation
date
may
be
as
early
as
2011.

D.
California's
Intent
to
Adopt
an
In­
Use
NTE
Test
Program
California's
involvement
in
the
development
of
this
program
was
critical
in
assuring
that
engine
manufacturers
are
subject
to
a
consistent
national
in­
use
NTE
test
program.
CARB
intends
to
adopt
an
identical
program
soon.
EPA
and
CARB
expect
to
coordinate
in
the
annual
selection
of
engine
families
to
be
in­
use
tested
and
to
work
together
in
determining
whether
Phase
2
testing
is
warranted
for
families
where
the
number
of
passing
engines
in
Phase
1
does
not
automatically
lead
to
no
further
testing.

CARB
has
its
own
authority
and
decision
process
in
determining
remedial
action
for
failing
families,
but
CARB
expects
to
work
with
EPA
and
the
manufacturers
in
this
process.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
22
II.
Details
of
the
Rule
This
section
presents
the
details
of
the
two­
phase
in­
use
NTE
testing
program
for
heavy­
duty
diesel
vehicles.
It
focuses
primarily
on
the
fully
enforceable
program
that
will
begin
with
the
2007
model
year
for
gaseous
pollutants
and
2008
for
PM.
A
number
of
the
special
features
for
a
pilot
program
during
the
two
years
preceding
each
of
the
fully
enforceable
dates
described
above
are
also
described.
Key
aspects
of
the
pilot
program
are
further
summarized
in
section
II.
M.
of
this
preamble.

We
have
initiated
a
comprehensive
research,
development,
and
demonstration
program
that
is
designed
to
identify
new
accuracy
measurement
margins
for
portable
measurement
devices.
When
completed,
the
accuracy
margins
are
expected
to
be
adopted
for
use
in
the
fully
enforceable
program.
EPA
has
modified
the
testing
requirements
during
the
pilot
program
for
manufacturers
that
participate
in
the
accuracy
margin
development
effort.
In
addition,
the
fully
enforceable
program
for
either
gaseous
emissions
or
PM
may
be
postponed
if
the
process
of
identifying
the
final
accuracy
margins
is
significantly
delayed
beyond
the
originally
scheduled
completion
dates.
The
implications
of
the
measurement
accuracy
margin
development
program
are
fully
described
in
section
II.
L.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
23
The
in­
use
NTE
testing
program
we
are
promulgating
today
is
nearly
identical
to
the
program
we
proposed
in
the
Federal
Register
on
June
10,
2004
(
69
FR
32804)
and
June
21,
2004
(
69
FR
34326).
The
features
of
the
program
that
were
revised
based
on
public
comments
received
on
the
proposed
rule
are
described
in
this
section.
Our
response
to
the
significant
public
comments
is
contained
in
the
Summary
and
Response
to
Comments
document
that
accompanies
this
final
rule.

A.
Applicability
The
requirements
apply
to
diesel
engines
certified
for
use
in
heavy­
duty
vehicles
(
including
buses)
with
gross
vehicle
weight
ratings
(
GVWR)
greater
than
8,500
pounds.

However,
the
requirements
do
not
apply
to
any
heavy­
duty
diesel
vehicle
that
was
certified
using
a
chassis
dynamometer
under
our
CAP
2000
certification
program,

including
medium­
duty
passenger
vehicles
with
GVWRs
of
between
8,500
and
10,000
pounds.
The
manufacturer
of
heavy­
duty
diesel
engines
subject
to
the
program
is
responsible
for
all
of
the
costs
associated
with
project
planning,
vehicle
procurement,

testing,
and
reporting.

We
are
establishing
a
fully
enforceable,
two­
phase
test
program
for
heavy­
duty
diesel
engines
beginning
with
in
2007
for
gaseous
pollutants
and
2008
for
PM.
In
those
years,
the
fully
enforceable
test
program
will
apply
to
2007
and
later
model
year
engines.

We
are
also
establishing
a
mandatory
pilot
program
for
gaseous
pollutants
in
calendar
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
24
years
2005
and
2006,
and
for
PM
in
calendar
years
2006
and
2007.
Under
the
gaseous
emission
pilot
program,
2002
through
2006
model
year
vehicles
may
be
tested.
Under
the
PM
pilot
program,
2002
through
2007
model
year
vehicles
may
be
tested.
The
pilot
program
will
utilize
only
the
first
phase
of
the
two­
phase
program
developed
subsequent
fully
enforceable
program.

We
had
originally
proposed
to
require
emissions
testing
for
PM
concurrently
with
gaseous
emissions.
In
doing
so,
we
acknowledged
that
more
development
work
was
needed
before
portable
PM­
measurement
systems
were
available.
However,
it
appeared
possible
to
complete
this
work
prior
to
the
start
of
the
pilot
program
in
2005.
The
engine
manufacturers
commented
that
the
instrumentation
to
measure
PM
emissions
onboard
a
vehicle
was
not
available.
Further,
they
stated
that
a
PM
requirement
should
not
be
included
in
the
program
until
such
time
as
validated,
properly
field­
tested
onboard
devices
become
commercially
available.
Our
evaluation
of
the
status
of
portable
PM
measurement
technology
shows
that
the
development
of
portable
devices
has
progressed,
but
not
as
quickly
as
anticipated.
We
currently
expect
portable
PM
measurement
systems
will
be
available
for
2006.
Therefore,
we
have
delayed
the
start
of
the
PM
pilot
program
one
year
until
that
date,
i.
e.,
2006.
Similarly,
the
enforceable
program
for
PM
will
now
start
in
2008.
A
more
detailed
discussion
of
both
gaseous
and
PM
portable
measurement
systems
is
presented
in
section
II.
L.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
6
Add
titles,
etc.,
for
the
two
documents
here.

25
Engine
manufacturers
commented
that
the
model
year
applicability
for
the
pilot
program
was
too
broad.
Specifically,
they
argued
that
the
plot
should
be
limited
to
2005
and
2006
model
year
vehicles
because
some
2002
through
2004
engine
families
were
not
specifically
certified
to
meet
NTE
standards.
We
agree
with
the
manufacturers
to
the
extent
that
engine
families
which
were
not
certified
in
compliance
with
the
NTE
requirements
should
not
be
tested
in
the
manufacturer­
run
program.
However,
their
recommended
exclusion
is
also
too
broad.
Instead,
we
will
include
model
years
back
through
2002
in
the
pilot
program,
but
we
will
only
select
engines
which
have
been
designed
to
comply
with
the
NTE.
This
includes
engines
certified
under
consent
decree
requirements,
California
NTE
regulations,
and
the
voluntary
NTE
provisions
contained
in
EPA
guidance
document
VPCD
98­
13
and
Advisory
Circular
24­
3.6
EPA
will
only
select
engine
families
for
which
the
manufacturer's
Statement
of
Compliance
specifically
describes
the
engine
as
being
designed
to
comply
with
the
NTE
either
by
regulation
or
voluntarily.
For
engines
not
designed
to
comply
with
the
NTE,
EPA
does
reserve
the
right
to
use
the
NTE
as
a
means
to
evaluate
the
appropriateness
of
a
manufacturer's
auxiliary
emissions
control
devices
(
i.
e.,
screen
for
defeat
devices)
as
explained
in
the
EPA
guidance
documents
above.
In
such
a
case,
EPA
would
conduct
the
testing
and
would
not
require
the
manufacturers
to
do
so
under
the
in­
use
program.

B.
Engine
Family
Selection
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
26
1.
Number
of
Engine
Families
EPA
currently
estimates
that
71
heavy­
duty
diesel
engine
families
are
being
certified
by
13
manufacturers
that
would
potentially
be
eligible
for
in­
use
testing
under
this
proposed
program.
Our
goal
in
deciding
how
many
engine
families
should
be
tested
each
year
is
to
conduct
enough
testing
to
assure
in­
use
compliance
with
the
applicable
emission
standards,
while
at
the
same
time
keep
the
program
from
being
overly
burdensome
for
the
engine
manufacturers.

As
a
general
premise,
we
believe
it
is
reasonable
test
all
of
a
manufacturer's
heavyduty
diesel
engine
families
over
a
four­
year
period.
So,
we
will
to
designate
up
to
25
percent
of
a
manufacturer's
total
number
of
engine
families
for
testing
per
calendar
year.

The
number
of
engine
families
that
are
tested
in
a
given
year
will
be
based
on
the
actual
number
of
engine
families
certified
by
that
manufacturer
in
that
year,
rounded
up
or
down
as
appropriate.
However,
for
the
purpose
of
calculating
the
number
of
engine
families
certified
in
a
given
year,
we
will
only
include
engine
families
with
a
production
volume
greater
than
1,500
engines.
This
designation
strategy
will
provide
in­
use
test
data
for
most
of
the
diesel
engine
population
and,
at
the
same
time,
not
overburden
manufacturers
that
have
several
small
production
engine
families.
If
a
manufacturer
has
three
or
fewer
engine
families
that
exceed
the
annual
1,500
engine
production
limit,
including
when
a
manufacturer
has
no
families
with
production
levels
above
that
limit,
we
will
only
test
one
engine
family
per
year.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
27
We
will
also
cap
the
maximum
number
of
families
designated
for
testing
over
any
four­
year
period
to
the
average
number
of
families
for
that
manufacturer
over
that
fouryear
period,
rounding
up
or
down
as
appropriate.

Several
examples
showing
how
many
engine
families
we
can
designate
each
year
for
testing
under
the
proposed
in­
use,
manufacturer­
run
program
are
provided
below.
The
illustrations
are
arranged
in
an
increasing
order
of
complexity.
Additional
examples
and
other
relevant
information
are
presented
in
the
Technical
Support
Document
for
today's
proposal.

The
first
two
examples
illustrate
how
we
would
calculate
the
annual
number
of
engine
families
for
testing
using
the
25
percent
per
year
limit
for
engine
families
above
the
1,500
units
per
year
level,
and
when
a
manufacturer
only
has
engine
families
with
annual
production
less
than
1,500
units
per
year.
First,
Manufacturer
A
has
12
certified
engine
families
in
production
in
a
given
model
year,
and
only
8
out
of
the
12
families
have
annual
productions
levels
of
over
1,500
engines.
Then
the
maximum
number
of
engine
families
we
can
designate
for
in­
use
testing
from
Manufacturer
A
in
that
calendar
year
is
2
(
i.
e.,
25
percent
of
8
engine
families).
Second,
Manufacturer
B
has
8
engine
families,
all
with
annual
production
less
than
1500
engines.
In
this
situation,
we
are
limited
to
selecting
only
1
engine
family
for
testing
in
that
calendar
year.

The
next
two
examples
are
somewhat
more
complex.
The
first
of
these
examples
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
28
shows
how
the
four­
year
limitation
(
i.
e.,
cap)
on
the
maximum
number
of
designated
engine
families
works
with
a
constant
number
of
engine
families
over
time.
First,

Manufacturer
C
has
3
engines
families
in
production
in
each
of
four
consecutive
years,
or
an
average
of
3
engine
families
per
year
over
a
four­
year
period.
Additionally,
all
the
families
have
annual
production
volumes
over
1,500
units.
In
this
situation,
1
engine
family
per
year
can
be
designated
for
testing
in
three
of
the
four
calendar
years.
However,

no
family
can
be
selected
in
one
of
the
four
years
because
the
number
of
families
tested
would
otherwise
exceed
the
average
number
of
families
produced
over
the
four­
year
period.
Second,
Manufacturer
D
produces
7
engine
families
each
year
during
a
four­
year
period
and
all
the
families
are
over
1,500
units
per
year.
In
this
situation,
we
can
select
up
to
2
engine
families
per
year
under
the
25
percent
annual
limit
(
i.
e.,
25
percent
of
7
families
is
1.75,
which
rounds
up
to
2).
So,
2
engine
families
can
be
designated
for
testing
in
three
of
the
four
calendar
years,
but
only
1
family
can
be
tested
in
a
fourth
year
because
the
four­
year
cap
on
the
maximum
number
of
engines
tested
would
otherwise
be
exceeded.

The
last
example
is
the
most
complex.
It
once
again
illustrates
how
the
four­
year
cap
on
the
maximum
number
of
designated
engine
families
applies,
but
in
this
case
for
a
scenario
were
the
number
of
engine
families
varies
over
time,
and
when
the
fully
enforceable
program
is
just
beginning
(
i.
e.,
the
2007
calendar
year).
Manufacturer
E
produces
6
engine
families
in
the
2004
through
2009
model
years
and
7
engine
families
in
the
2010
through
2014
model
years.
We
can
order
testing
for
2
engine
families
each
in
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
7
See,
"
Guide
for
the
Use
of
the
International
System
of
Units
(
SI),
NIST
Special
Publication
811,
1995
Edition,
National
Institute
of
Standards
and
Technology,
U.
S.
Department
of
Commerce."

Under
the
rounding
convention
contained
in
this
reference,
when
the
first
digit
discarded
is
exactly
5,
the
last
digit
retained
should
be
rounded
upward
if
it
is
an
odd
number,
but
no
adjustment
made
if
it
is
an
even
number.

29
2007,
2008
and
2009
under
the
25
percent
annual
limit
(
i.
e.,
25
percent
of
6
families
is
1.5,
which
rounds
up
to
2
using
standard
rounding
practices
7).
In
2010,
however
we
cannot
order
testing
of
any
families
because
the
average
number
of
certified
families
in
the
four
years
preceding
testing
(
including
the
current
model
year)
is
6.25,
rounded
down
to
6.
Since
we
have
already
tested
6
engine
families
in
the
previous
three
years,
we
cannot
test
another
engine
family
in
the
fourth
year
because
the
total
number
of
engine
families
in
the
four­
year
period
would
be
greater
than
the
average
number
of
engine
families
produced
in
the
past
four
years
(
i.
e.,
6).
In
2011,
we
can
order
the
testing
of
2
families
under
the
25
percent
annual
limit.
Here,
the
average
number
of
engine
families
in
the
four
years
preceding
testing
(
including
the
current
model
year)
is
6.5.
This
rounds
down
to
6,

again
using
standard
rounding
practices.
Since
we
have
only
tested
4
engine
families
in
the
previous
three
years,
we
can
test
another
2
engine
families
in
the
fourth
year.
For
2012
the
average
number
of
engine
families
in
the
four­
year
period
is
6.75
(
6
families
in
model
year
2009
and
7
families
in
model
years
2010
through
2012).
Rounding
up
from
6.75,
we
can
order
testing
for
7
engine
families
in
the
four­
year
period
prior
to
2012.

Since
we
have
only
ordered
testing
for
4
families
in
the
previous
three
years,
we
can
order
testing
for
2
families
under
the
25
percent
annual
limit
in
2012.
Similarly,
we
can
order
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
30
the
testing
of
2
families
in
2013.
However,
in
2014,
we
can
order
testing
for
only
1
engine
family
because
the
average
number
of
families
produced
in
the
applicable
four­
year
period
is
7
and
we
have
already
ordered
testing
for
6
engine
families
in
the
previous
three
years.

Only
the
most
recent
and
accurate
sales
information
will
be
used
to
identify
engine
families
with
annual
U.
S.­
directed
production
volumes
of
1,500
engines
or
less
when
determining
the
potential
number
of
engine
families
we
may
require
a
manufacturer
to
test
in
any
year.
When
an
engine
family
has
reached
the
end
of
its
production,
the
actual
sales
for
an
engine
family
that
is
already
required
to
be
submitted
to
EPA
at
the
end
of
each
model
year
as
part
of
the
certification
program
will
be
used
for
this
purpose.
If
the
engine
family
has
not
ended
production
and
final
sales
are
not
available,
then
we
may
use
the
sales
projection
that
is
provided
as
part
of
a
manufacturer's
certification
application.

After
the
number
of
engine
families
that
are
eligible
for
in­
use
testing
is
determined
for
a
calendar
year,
we
may
select
any
engine
family
for
testing
that
a
manufacturer
has
in
production
that
model
year,
or
any
other
engine
families
produced
by
the
manufacturer
in
previous
model
years
covered
by
the
testing
program.
We
also
reserve
the
right
to
designate
any
engine
family
previously
tested
under
this
program
in
a
subsequent
calendar
year.
This
will
allow
us
to
evaluate
the
emission
performance
of
heavy­
duty
diesel
vehicles
as
they
accumulate
mileage
over
a
number
of
years.
It
will
also
allow
us
to
assess
a
manufacturer's
remedy
of
any
previous
nonconformance
problem,
which
was
discovered
under
the
proposed
in­
use
testing
program.
When
evaluating
past
model
years
for
testing,
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
31
we
will
also
consider
such
factors
as
the
likely
number
of
vehicles
remaining
in
service
and
their
perspective
mileage
relative
to
their
certified
useful
life.

We
intend
to
make
our
engine
family
selections
by
approximately
June
30
of
each
calendar
year.
Waiting
until
the
mid­
point
of
the
calendar
year
to
select
engine
families
for
testing
increases
the
likelihood
that
EPA
will
be
able
to
choose
from
a
manufacturer's
entire
product
offering
for
that
same
model
year.
Typically,
all
of
a
manufacturer's
engines
for
a
given
model
year
are
covered
by
a
certificate
of
conformity
by
the
mid­
point
of
that
same
calendar
year.
For
example,
all
2007
model
year
engines
are
expected
to
be
certified,
in
most
cases,
by
the
June
30,
2007.
This
also
allows
EPA
to
calculate
the
number
of
engine
families
to
be
ordered
for
testing
in
a
given
calendar
year
without
having
to
continually
update
that
number
and
order
further
testing.
In
the
event
one
or
more
engine
families
are
certified
by
a
manufacturer
after
June
30,
we
will
update
our
calculation
of
the
number
of
engine
families
we
can
order
tested
in
that
calendar
year
and,

if
appropriate,
order
further
testing.
We
still
may
select
any
engine
family
by
the
end
of
that
calendar
year
for
testing,
including
the
newly
certified
family,
with
the
understanding
that
the
manufacturer
is
allowed
the
same
period
of
time
for
testing
and
reporting
results
from
each
engine
family
from
the
date
of
selection.

Regarding
the
testing
and
reporting
period,
we
are
allowing
18
months
from
the
time
an
engine
family
is
designated
for
testing
until
the
results
must
be
reported
to
us.
A
manufacturer
may
request
up
to
six
addition
months
to
complete
and
report
Phase
2
test
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
32
results
if
there
is
a
reasonable
basis
for
needing
more
time.
Further,
a
manufacturer
may
request
an
additional
six
month
extension.
More
details
on
the
testing
and
reporting
period
is
presented
in
section
II.
K.
1.

Engine
manufacturers
commented
that
EPA
should
specify
a
single
point
in
time
for
identifying
engine
families
that
must
be
tested
for
that
calendar
year's
selection
since
the
number
of
certified
families
changes
over
the
year.
We
believe
the
proposed
selection
protocol
fairly
balances
our
desire
to
maximize
the
number
of
engine
families
that
may
designated
for
testing
in
any
year,
with
a
manufacturer's
need
for
certainty
in
its
planning
process
and
a
manageable
testing
burden.
As
already
noted,
manufacturers
normally
certify
all
or
most
of
their
engine
families
by
June
30
of
each
year.
So
a
manufacturer
will
know
either
its
complete
liability
under
the
in­
use
testing
program
or
the
bulk
of
its
responsibility
by
that
time.
Because
of
the
lead
time
normally
associated
with
engine
development
and
the
certification
process,
a
manufacturer
planning
to
certify
an
engine
family
after
approximately
June
30
should
calculate
the
possible
in­
use
testing
exposure
associated
with
that
action
and
plan
accordingly
relative
to
the
expenditure
of
resources.

This
does
not
seem
overly
burdensome,
since
all
selected
engine
families
are
provided
the
same
testing
and
reporting
period,
regardless
of
the
date
the
family
was
selected
for
testing
(
see
section
II.
K.
1.
of
this
preamble
for
a
discussion
of
the
testing
and
reporting
period).
Therefore,
we
are
adopting
the
engine
family
selection
protocol
as
proposed.

2.
Treatment
of
Nonconforming
Engine
Families
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
8
Manufacturers
designate
carryover
engine
families
during
the
certification
process.
The
carryover
designation
indicates
that
the
engine
family
for
which
a
certificate
is
being
requested
is
nearly
identical
to
an
engine
family
which
has
been
previously
certified.
In
such
instances,
the
emissions
results
from
the
previously
certified
engine
family
are
directly
applied
or
carried
over
to
the
engine
family
for
which
a
certificate
is
being
requested.

9
Section
207
(
c)
of
the
Clean
Air
Act
(
CAA)
authorizes
EPA
to
require
manufacturers
to
recall
vehicles
or
engines
for
the
purpose
of
remedying
noncompliance
with
EPA
regulations
that
occur
during
the
regulatory
useful
life
of
the
vehicle
or
engine.
EPA
may
only
require
a
recall
when
the
noncompliance
involves
a
substantial
number
of
a
class
or
category
of
vehicles
or
engines
which
have
been
properly
maintained
and
used.
(
See
CAA
Section
207(
c)).
The
procedures
EPA
uses
to
administer
emissions
recalls
are
described
in
40
CFR
Part
85
Subpart
S.

33
If
there
is
clear
evidence
of
an
emissions
nonconformity
with
respect
to
one
or
more
of
that
manufacturer's
families,
a
manufacturer
may
be
required
to
test
a
number
of
engine
families
that
exceeds
the
numerical
limits
described
in
Section
II.
B.
1.
above.
More
specifically,
we
may
require
any
engine
family
for
which
such
a
determination
is
made
be
tested
in
the
manufacturer­
run,
in­
use
NTE
testing
program
in
any
subsequent
year
without
counting
toward
the
otherwise
applicable
limit
on
the
number
of
families
we
may
select
in
any
year.

For
the
purposes
of
the
in­
use
testing
program
only,
if
an
engine
family
was
subject
to
a
recall
action
(
voluntary
or
mandatory),
that
failure
is
clear
evidence
of
a
nonconformity
for
that
engine
family
and
any
carryover
engine
family
produced
in
a
prior
or
subsequent
model
year.
8,
9
The
remedied
engine
family
may
have
been
normally
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
34
selected
for
testing
under
the
proposed
in­
use
testing
program,
but
did
not
pass
the
vehicle
pass
criteria
and
was
subject
to
a
recall
action.
Alternatively,
the
remedied
family
may
have
been
recalled
based
the
results
of
an
EPA
in­
use
testing
program.
This
linkage
of
carryover
engine
families
helps
ensure
that
manufacturers
will
be
sufficiently
motivated
to
remedy
in
a
timely
manner
any
noncompliance
which
is
strongly
suspected
to
cut
across
multiple
engine
families.
As
with
other
aspects
of
this
program,
we
will
consult
with
the
manufacturer
when
contemplating
a
determination
of
clear
evidence.
An
engine
family
selected
using
the
"
no
count"
designation
may
have
never
been
tested
under
the
proposed
manufacturer­
run,
in­
use
NTE
testing
program,
or
it
may
have
been
tested
but
no
remedial
action
was
initiated
based
on
the
test
results.

3.
Small
or
Unavailable
Engine
Families
We
recognize
the
possibility
that
a
manufacturer
may
find
it
difficult
or
impossible
to
locate
a
sufficient
number
of
vehicles
from
a
designated
diesel
engine
family
to
complete
testing
even
after
a
diligent
and
good
faith
recruiting
effort.
This
might
especially
happen
for
families
with
limited
sales,
or
if
a
significantly
older
model
year
is
designated
for
testing.
Of
course,
we
will
attempt
to
avoid
such
an
outcome
in
our
engine
family
selection
process.
However,
if
a
manufacturer
encounters
this
problem
and
cannot
complete
either
the
Phase
1
or
Phase
2
testing
in
the
time
frame
or
manner
required,
the
manufacturer
may
ask
us
to
modify
the
testing
requirements
for
such
engine
family
or
designate
a
different
diesel
engine
family
for
testing.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
35
4.
Engine
Families
Unsuitable
for
Testing
The
Detroit
Diesel
Corporation
(
DDC)
commented
that
certain
chassis
and
applications
are
entirely
unsuited
for
in­
use
testing,
and
that
these
should
be
excluded
from
the
program.
As
an
example,
the
company
identified
fire
truck
and
emergency
vehicles
with
unique
engine
families
as
falling
into
this
category
because
they
can
not
be
instrumented
without
compromising
the
utility
of
the
chassis.
Also,
DDC
suggested
that
there
are
numerous
applications
where
interior
space
constrains
would
not
allow
mounting
the
test
equipment
inside
the
cab
and
still
provide
for
the
presence
of
a
technician.
In
this
latter
regard,
the
company
noted
that
weatherproof
systems
are
yet
to
be
developed
by
instrument
manufacturers.
Consequently,
DDC
recommended
that
EPA
not
require
in­
use
testing
of
engine
families
constrained
by
such
application
considerations.

In
general,
EPA
will
avoid
selecting
engine
families,
and
vehicle
chassis
and
applications
where
testing
with
portable
emissions
sampling
systems
is
infeasible,

impractical,
or
unsafe.
We
anticipate
that
such
testing
challenges
would
generally
be
isolated
to
a
specific
sub­
class
of
vehicle
chassis
or
applications.
Therefore,
engine
families
are
not
expected
to
be
wholly
eliminated
from
consideration
for
reasons
of
portable
testing
incompatibility.
To
the
extent
incompatible
engine
families
exist,
they
will
likely
be
characterized
by
small
volume
annual
production
of
fewer
than
1,500
units.

In
general,
these
low
production
engine
families
will
be
selected
for
testing
less
frequently
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
36
than
their
larger
volume
counterparts
which
makes
it
easier
to
avoid
compatibility
issues.

We
also
believe
that
the
in­
use
testing
requirements
provide
manufacturers
sufficient
latitude
to
avoid
selecting
vehicles
which
are
not
suitable
for
in­
use
testing.
In
our
own
in­
use
testing
with
portable
emission
measurement
devices,
we
have
successfully
tested
both
fire
trucks
and
emergency
vehicles.
Additionally,
we
have
revised
the
regulations
to
allow
a
manufacturer
to
reject
a
particular
vehicle
from
the
program
if
it
is
found
to
be
unsuitable
without
prior
notification
to
EPA.
Any
rejected
vehicle
must
be
replaced
with
another
perspective
test
vehicle,
and
the
rejection
reported
to
us
in
the
manufacturer's
normal
in­
use
testing
reports.
We
will
provide
additional
guidance
on
the
conditions
that
must
be
satisfied
to
reject
a
vehicle
for
this
purpose.

We
expect
that
concerns
about
the
suitability
of
portable
testing
will
continue
to
diminish
as
portable
emissions
measurement
systems
evolve
into
more
compact,
durable,

user
friendly
devices.

C.
Phase
1
Testing
Scheme
1.
Focus
of
Initial
Testing
The
first
phase
of
testing,
Phase
1,
is
intended
to
quickly
screen
a
designated
heavy­
duty
diesel
engine
family
for
conformity
with
the
applicable
NTE
standards.
If
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
37
enough
of
the
engines
tested
from
the
family
pass
the
initial
screening,
no
additional
testing
of
that
family
is
required
under
the
in­
use
testing
program
in
that
year.
If
the
early
test
results
from
Phase
1
indicate
a
potential
nonconformity,
then
several
more
vehicles
must
be
tested
to
generate
additional
information
regarding
the
significance
of
any
potential
problem,
or
whether
more
testing
in
the
next
phase
of
the
program,
Phase
2,
is
needed
to
further
evaluate
the
emissions
performance
of
that
engine
family.

2.
Engine
Family
Evaluation
Criteria
and
Outcomes
For
Phase
1
testing,
a
manufacturer
must
test
a
minimum
of
five
and
a
maximum
of
10
different
vehicles
within
a
designated
engine
family.
The
exact
number
of
vehicles
depends
on
how
many
of
the
tests
exceed
a
specified
numerical
emissions
limit,
or
the
vehicle
pass
criteria,
not
to
be
confused
with
the
proper
maintenance
and
use
criteria
(
see
section
II.
E.
of
this
preamble
for
a
description
of
the
vehicle
pass
criteria).
Requiring
up
to
10
vehicle
tests
will
provide
sufficient
information
for
us
to
decide
if
further
testing
or
other
information
is
needed
to
better
evaluate
a
potential
nonconformity,
or
if
some
form
of
remedial
action
may
be
warranted.
This
level
of
testing
will
provide
a
quick
indication
of
an
engine
family's
emissions
compliance
without
being
overly
burdensome
to
engine
manufacturers.
Our
multi­
step
engine
family
evaluation
criteria
and
the
outcomes
associated
with
how
many
vehicles
pass
the
in­
use
testing
requirements
at
various
levels
within
the
testing
hierarchy
are
described
below.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
38
A
manufacturer
will
initiate
Phase
1
by
testing
5
vehicles.
If
all
five
satisfy
the
vehicle
pass
criteria
(
i.
e.,
5
out
of
5
pass),
testing
stops
and
no
other
action
is
required
of
the
manufacturer
for
that
diesel
engine
family
under
the
program
for
that
year.
If
only
one
of
the
initial
test
vehicles
fails
the
vehicle
pass
criteria,
the
manufacturer
will
test
another
vehicle.
The
manufacturer
may
stop
testing
if
the
sixth
vehicle
satisfies
the
vehicle
pass
criteria
(
i.
e.,
5
out
of
6
pass).
In
the
event
that
neither
of
the
above
conditions
are
met
(
i.
e.,
4
or
fewer
out
of
6
pass),
the
manufacturer
must
test
a
total
of
10
vehicles.

Various
outcomes
are
possible
based
on
the
observed
number
of
vehicle
passes
or
failures
from
the
Phase
1
testing,
as
well
as
other
supplemental
information.
If
all
four
of
the
additional
test
vehicles
met
the
vehicle
pass
criteria
and
only
two
of
the
original
six
test
vehicles
exceeded
the
criteria
(
i.
e.,
8
out
of
10
pass),
testing
stops
and
no
other
action
is
required
of
the
manufacturer
for
that
diesel
engine
family
under
the
program
for
that
year.
When
six
or
seven
of
the
10
test
vehicles
satisfy
the
vehicle
pass
criteria
(
i.
e.,
6
or
7
out
of
10
pass),
the
manufacturer
must
join
EPA
in
follow­
up
discussions
to
determine
whether
any
further
testing,
investigations,
data
submissions,
or
other
actions
may
be
warranted.
In
such
a
case,
three
outcomes
are
possible.
First,
we
may
ultimately
decide
not
to
take
further
action
if
no
significant
nonconformity
is
indicated
after
a
thorough
evaluation
of
the
causes
or
conditions
that
caused
vehicles
in
the
engine
family
to
fail
the
vehicle
pass
criteria,
and
a
review
of
any
other
supplemental
information
obtained
separately
by
EPA
or
submitted
by
the
manufacturer
shows
that
no
significant
nonconformity
exists.
Testing
would
then
stop
and
no
other
action
is
required
of
the
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
39
manufacturer
for
that
diesel
engine
family
under
the
program
for
that
year.
Second,
we
may
seek
some
form
of
remedial
action
from
the
manufacturer
based
on
our
evaluation
of
the
Phase
1
test
results
and
review
of
other
supplemental
information.
Third,
and
finally,

the
engine
manufacturer
may
undertake
Phase
2
testing,
if
both
EPA
and
the
manufacturer
agree
this
is
the
best
course
of
action.
Of
course,
a
manufacturer
may
always
voluntarily
conduct
Phase
2
testing.

In
the
event
that
fewer
than
six
test
vehicles
comply
with
the
vehicle
pass
criteria
(
i.
e.,
5
or
fewer
out
of
10
pass),
the
manufacturer
must
consult
with
us
just
as
when
six
or
seven
out
of
10
pass
as
described
above.
Once
again,
we
may
decide
not
to
take
further
action
if
no
significant
nonconformity
is
indicated.
If
a
possible
nonconformity
is
indicated,
the
consultation
may
lead
us
to
mandate
Phase
2
testing
even
if
the
manufacturer
does
not
voluntarily
elect
to
do
so.
In
situations
where
a
significant
nonconformity
is
observed
during
Phase
1
testing,
we
may
order
a
recall
action
for
the
diesel
engine
family
in
question
if
the
manufacturer
does
not
voluntarily
initiate
an
acceptable
remedial
action.

D.
Phase
2
Testing
Scheme
1.
Initiation
and
Focus
of
Additional
Testing
The
primary
purpose
of
Phase
2
test
program
is
to
gain
further
information
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
40
regarding
the
extent
to
which,
and
under
what
conditions,
the
vehicles
from
the
designated
engine
family
are
failing
to
pass
the
vehicle
pass
criteria.
If
appropriate,
a
manufacturer's
testing
may
be
focused
on
certain
test
conditions
or
a
subclass
of
engines
within
the
designated
heavy­
duty
diesel
engine
family
as
outlined
below.
As
described
previously,

EPA
and
the
manufacturer
may
agree
that
it
is
appropriate
to
initiate
Phase
2
testing
if
six
or
seven
of
the
10
test
vehicles
in
Phase
1
satisfy
the
vehicle
pass
criteria.
Phase
2
testing
may
also
be
mandated
by
us
in
the
event
that
only
five
or
fewer
of
the
test
vehicles
in
Phase
1
meet
the
vehicle
pass
criteria.
(
See
section
II.
C.
for
additional
information
regarding
the
conditions
under
which
Phase
2
may
be
initiated.)

2.
Number
of
Engines
and
Test
Conditions
We
may
require
a
manufacturer
to
test
up
to
10
vehicles
from
the
designated
heavy­
duty
diesel
engine
family
under
Phase
2.
We
may,
at
our
discretion,
require
the
testing
of
fewer
than
10
vehicles.
A
pass/
fail
determination
for
each
vehicle
will
be
made
by
comparing
its
measured
emissions
to
the
same
vehicle
pass
criteria
used
in
Phase
1.

Testing
up
to
10
additional
vehicles
under
this
phase
of
the
program
will
provide
valuable
information
regarding
whether
the
engine
family
conforms
with
the
applicable
requirements.

We
may
direct
a
manufacturer
to
test
one
or
more
specific
engine
and
emission
control
or
power
configurations
(
i.
e.,
subclasses)
within
the
designated
engine
family.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
41
Additionally,
we
may
specify
certain
driving
routes
or
other
driving
conditions
(
e.
g.,

temperatures,
altitudes,
geographic
conditions,
or
time
of
year).
As
already
discussed,
the
purpose
of
these
additional
specifications
is
to
better
understand
the
extent
to
which,
and
under
what
conditions,
the
vehicles
in
the
engines
family
are
failing
to
pass
the
vehicle
pass
criteria.
Therefore,
the
specifications
would
be
based
on
the
Phase
1
test
conditions
that
indicated
a
potential
nonconformity.

We
requested
comment
on
whether
EPA
should
similarly
be
allowed
to
direct
a
manufacturer
to
test
specific
engine
configurations,
test
routes,
and
driving
conditions
for
Phase
1
testing.
We
are
not
adopting
that
requirement
based
on
our
review
of
adverse
comments
we
received
from
engine
manufacturers.
The
comment
and
our
response
is
contained
in
section
II.
J.
of
this
preamble.

E.
Vehicle
Pass
Criteria
Generally,
the
vehicle
pass
criteria
require
measuring
the
emissions
from
the
test
engine
each
time
it
operates
for
30
seconds
or
more
in
the
NTE
control
area.
The
NTE
control
area
is
a
defined
range
of
engine
operating
conditions
that
are
subject
to
the
NTE
emission
standards
(
see
section
I.
C.
1.
of
this
preamble
for
more
information
on
the
NTE
control
area).
Each
excursion
into
the
NTE
control
area
for
thirty
or
more
seconds
is
called
an
NTE
sampling
event.
The
30
second
minimum
is
intended
to
moderate
the
influence
of
short­
duration,
high
intensity
emission
spikes
that
do
not
have
a
significant
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
10
For
more
information
on
NTE
control
area
limits
and
exclusions,
see
65
FR
59912,
59914
(
October
6,
2000),
and
66
FR
5040
(
January
18,
2001).

42
bearing
on
overall,
real­
world
emissions
in
the
compliance
determination.
The
average
emission
level
of
the
NTE
sampling
event
for
each
regulated
pollutant
is
then
compared
to
an
NTE
emission
threshold.
The
NTE
emission
threshold
is
the
sum
of
the
applicable
NTE
standard,
any
in­
use
compliance
margin
already
allowed
by
the
regulations,
and
the
new
in­
use
measurement
margin
allowance.
The
vehicle
pass
criteria
then
require
a
comparison
of
the
number
of
NTE
sampling
events
that
were
below
the
NTE
threshold
to
all
of
the
sampling
events
from
the
test.
The
NTE
threshold
is
further
described
in
Section
II.
F.
of
this
preamble.
Also,
for
the
first
three
years
of
the
program,
no
sampling
event
may
be
higher
than
a
specific
maximum
emission
limit.
The
maximum
emission
limit
for
these
engine
families
is
described
below.

More
specifically,
all
valid
NTE
sampling
events
must
be
used
in
the
vehicle
pass
determination.
A
valid
NTE
event
is
any
sample
that
meets
the
30
second
minimum
period
described
above,
excluding
any
engine
operation
that
is
exempt
from
the
NTE
standards
under
the
existing
regulations.
NTE
carve­
out
provisions
may
either
exclude
certain
operating
points
from
the
NTE
engine
control
area
or
exempt
engines
from
the
NTE
standards
when
operating
in
defined
regions
of
the
NTE
engine
control
area..

Currently,
an
engine
may
also
be
allowed
to
temporarily
exceed
the
NTE
standards
under
certain
limited
circumstances
under
the
NTE
deficiency
provisions.
10
If
90
percent
of
the
valid
NTE
samples
on
a
time­
weighted
basis
for
any
regulated
pollutant
are
no
greater
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
43
than
the
applicable
NTE
threshold,
then
the
test
engine
meets
the
vehicle
pass
criteria
for
that
pollutant.
However,
model
year
2007
through
2009
engines
must
meet
certain
additional
requirements.
For
these
years,
100
percent
of
the
valid
NTE
samples
for
any
regulated
pollutant
must
also
be
less
than
two
times
(
2X)
the
applicable
NTE
threshold,

except
when
the
engine
is
certified
to
a
Family
Emission
Limit
(
FEL)
for
NOx
of
0.50
gram
per
brake
horsepower­
hour
(
g/
bhp­
hr)
or
less.
In
this
case,
100
percent
of
the
valid
NTE
NOx
samples
must
be
less
than
two
times
the
NTE
threshold
or
less
than
2.00
g/

bhphr
whichever
is
numerically
greater.
While
operation
in
the
area
of
an
approved
deficiency
or
carve­
out
is
excluded
from
being
a
valid
NTE
event
for
the
purposes
of
this
in­
use
testing
program,
manufacturers
must
still
employ
appropriate
emissions
control
during
operation
in
these
regions
as
required
by
the
prohibition
against
defeat
devices.

For
any
operation
which
occurs
within
the
area
of
an
approved
NTE
deficiency,
we
will
compare
the
measured
emissions
results
to
the
emissions
estimates
the
manufacturer
provided
for
that
deficiency
at
the
time
of
certification
so
we
can
determine
whether
the
deficiency
requirements
have
been
met.

The
90
percent
criterion
should
provide
a
good
indicator
of
compliance
with
the
applicable
emission
standard,
while
at
the
same
time
allowing
for
certain
emissions
behavior
that
may
be
very
infrequent
or
unusual
in
nature
and,
therefore,
atypical
of
overall
in­
use
operation.
We
have
fashioned
the
additional
maximum
NTE
criteria
for
2007­
2009
model
year
engines
because
we
believe
it
appropriately
reflects
the
capability
of
current
control
technology
when
robustly
designed
and
properly
maintained.
We
do
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
44
not
envision
any
situation
where
the
current
technology
could
not
be
designed
to
avoid
emissions
above
these
maximum
criteria,
even
in
the
atypical
situations
mentioned
above.

EPA
will
evaluate
the
need
for,
and
level
of,
any
such
NTE
maximum
criteria
for
2010
and
later
model
year
heavy­
duty
diesel
vehicles
based,
in
part,
on
data
from
the
proposed
inuse
test
program,
the
capability
of
technology
used
to
comply
with
the
2010
model
year
requirements,
and
other
relevant
test
information.
If
we
decide
that
such
criteria
are
appropriate
based
on
this
review,
any
new
requirements
will
be
established
in
a
rulemaking
action.
If
we
take
no
action,
the
maximum
NTE
criteria
will
cease
to
exist
after
the
2009
model
year.

We
are
adopting
the
following
multi­
part
methodology
for
determining
if
the
engine
complies
with
the
90
percent
vehicle
pass
criterion
for
each
regulated
pollutant.

First,
find
the
average
g/
bhp­
hr
emission
level
for
each
valid
NTE
sample
by
dividing
the
total
mass
of
measured
emissions
(
e.
g.,
grams)
by
the
amount
of
work
performed
during
the
NTE
event
(
e.
g.,
brake
horsepower­
hour).
(
Note
that
this
step
is
also
used
to
determine
compliance
with
the
maximum
NTE
criteria
for
2007­
2009
model
year
engines
as
described
above.)
Second,
determine
for
each
valid
NTE
sampling
event,
whether
the
average
emission
level
is
less
than
or
equal
to
the
NTE
threshold
for
each
pollutant
subject
to
an
NTE
standard.
Third,
calculate
a
time­
weighted
vehicle
pass
ratio,
or
the
number
of
valid
NTE
sampling
events
that
meet
all
applicable
NTE
thresholds
compared
to
the
total
number
of
valid
NTE
sampling
events,
weighted
by
the
time
of
each
valid
NTE
event.
To
do
this,
begin
by
summing
the
time
from
each
valid
NTE
sampling
event
where
the
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
45
average
emission
level
for
each
pollutant
is
no
greater
than
the
NTE
threshold
for
that
pollutant,
and
then
divide
this
value
by
the
sum
of
the
engine
operating
time
from
all
valid
NTE
samples.
The
resulting
value
is
the
vehicle
pass
ratio
for
that
vehicle.
However,
if
any
single
valid
NTE
sampling
event
exceeds
600
seconds
or
10
times
the
length
of
the
shortest
valid
NTE
event,
the
time
contribution
for
that
event
must
be
limited
to
the
smaller
of
600
seconds
or
10
times
the
shortest
event
for
the
above
calculation.
These
conditions
on
the
maximum
allowable
duration
for
any
single
NTE
event
are
intended
to
prevent
a
small
number
of
very
long
sampling
events
from
inappropriately
overwhelming
the
time­
weighted
results.

We
want
to
clarify
that
the
vehicle
pass
criteria
used
for
the
manufacturer­
run,

inuse
testing
program
do
not
correspond
specifically
to
the
criteria
for
showing
compliance
to
the
NTE
standards.
That
is,
the
fact
that
a
vehicle
meets
the
vehicle
pass
criteria
under
this
program
does
not
mean
that
the
vehicle
passes
the
NTE
standards,
or
that
the
engine
family
is
in
full
compliance
with
the
standards,
and
the
use
of
these
criteria
to
show
a
vehicle
"
pass"
in
this
program
does
not
indicate
that
the
criteria
would
be
appropriate
for
NTE
testing
in
other
contexts.

The
vehicle
pass
criteria,
along
with
the
engine
family
evaluation
criteria
of
the
Phase
1
and
Phase
2
test
schemes
(
described
later),
are
designed
to
help
make
the
best
use
of
manufacturers'
and
EPA's
resources
in
determining
what
further
action
is
appropriate
regarding
that
engine
family.
Therefore,
the
vehicle
pass
criteria,
the
definition
of
a
valid
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
46
NTE
sampling
event,
the
criteria
for
moving
from
Phase
1
to
Phase
2,
and
all
others
aspects
of
the
in­
use
testing
program
are
solely
for
purposes
of
this
manufacturer
run,

inuse
test
program
and
are
not
intended
to
revise,
change,
or
interpret
the
NTE
standards,

the
NTE
test
procedures,
or
to
define
compliance
with
the
standards.

F.
NTE
Threshold
Specification
The
numerical
value
of
the
NTE
threshold
is
defined
as
the
applicable
NTE
standard,
including
any
compliance
margin
already
built
into
the
standard
for
in­
use
testing,
in
addition
to
a
new
margin
to
account
for
the
in­
use
measurement
accuracy
of
the
portable
emission
measurement
systems.
Therefore,
these
margins
are
added
to
the
applicable
standard
or
FEL
to
determine
the
numerical
in­
use
compliance
limit
(
i.
e.,
NTE
threshold).

1.
Not­
to­
Exceed
Standards
NTE
standards
applicable
to
model
year
2007
and
later
heavy­
duty
diesel
engines
apply
to
the
exhaust
emissions
of
non­
methane
hydrocarbons
(
NMHC),
carbon
monoxide
(
CO),
particulate
matter
(
PM)
and
oxides
of
nitrogen
(
NOx)
from
these
engines.
The
levels
of
the
NTE
standards
for
these
pollutants
are
determined
by
applying
a
multiplier
to
the
applicable
FTP
standard.
The
multiplier
varies
by
pollutant
and
certification
level,
but
it
is
generally
either
1.25
times
the
FTP
standard
or
1.50
times
the
FTP
standard.
See
40
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
47
CFR
86.007­
11(
a)(
4).
For
2002­
2006
model
year
engines
tested
under
the
pilot
program,

the
applicable
NTE
limit
used
to
develop
the
NTE
threshold
is
1.25
the
FTP
standard
for
that
model
year.

The
FTP
standards
for
2002
and
2003
model
year
heavy­
duty
diesel
engines
are
contained
in
40
CFR
86.099­
11,
except
that
those
engine
families
subject
to
NTE
requirements
under
the
Consent
Decrees
would
use
an
NTE
threshold
based
on
the
FTP
levels
found
in
the
appropriate
Consent
Decree.
The
standards
for
2004
to
2006
model
year
heavy­
duty
diesel
engines
are
contained
in
40
CFR
86.004­
11.
Those
for
2007
and
later
model
years
are
shown
in
40
CFR
86.007­
11.

2.
Existing
In­
Use
Compliance
Margins
We
previously
established
compliance
margins
for
in­
use
NOx
and
PM
emissions
testing
of
2007
to
2010
model
year
heavy­
duty
diesel
engines.
For
NOx,
the
margin
varies
by
mileage
from
0.10
to
0.20
g/
bhp­
hr
for
engines
certified
to
an
FEL
no
higher
than
1.3
g/
bhp­
hr.
For
PM,
the
margin
is
0.01
g/
bhp­
hr.
(
See
40
CFR
86.007­
11(
h)
for
more
details.)

3.
New
Measurement
Margins
for
Portable
Measurement
Systems.

We
are
including
new
"
accuracy
margins"
in
the
calculation
of
the
emission
EPA
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Material
Submitted
for
OMB
review
on
May
6,
2005
48
thresholds
for
this
program.
The
allowances
are
primarily
designed
to
account
for
any
differences
between
the
accuracy
of
the
portable
emission
measurement
instruments
for
use
on
a
vehicle
and
the
accuracy
of
those
available
for
use
in
a
laboratory.
The
allowance
also
takes
into
account
the
different
way
in
which
emissions
are
calculated
in
a
laboratory
versus
in
the
field.
Because
of
the
continuing
uncertainty
regarding
the
specific
accuracy
of
development
for
portable
measurement
systems
(
See
section
II.
L.),
we
have
chosen
to
adopt
an
interim
set
of
accuracy
margins
at
this
time.
These
margins
will
be
used
only
in
the
pilot
program.
As
explained
below,
we
are
developing
more
precise
accuracy
margins
for
use
in
the
subsequent
fully
enforceable
in­
use
testing
program.

a.
Pilot
Program
Accuracy
Margins.
During
the
pilot
program
years
that
precede
the
fully
enforceable
program,
manufacturers
will
use
interim
margins
that
we
believe
represent
an
upper
bound
of
the
possible
instrumentation
variability
based
on
our
experience
with
portable
and
laboratory
measurement
systems.
The
pilot
program
accuracy
margins
are:
NMHC,
0.17
grams
per
brake
horsepower­
hour
(
g/
bhp­
hr);
CO,

0.60
g/
bhp­
hr;
NOx,
0.5
g/
bhp­
hr;
and
PM,
0.10
g/
bhp­
hr.

b.
Final
Program
Accuracy
Margins.
The
margins
for
the
fully
enforceable
program,
i.
e.,
2007
for
gaseous
pollutants
and
2008
for
PM,
are
being
jointly
developed
through
a
comprehensive
research,
development,
and
demonstration
program.
The
cooperative
program
is
described
in
a
Memorandum
of
Agreement
(
MOA)
among
EPA,
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
11
See
"
Memorandum
of
Agreement,
Program
to
Develop
Emission
Measurement
Accuracy
Margins
for
Heavy­
Duty
In­
Use
Testing,"
dated
May
XX,
2005.
A
copy
of
the
memorandum
is
contained
in
the
public
docket
for
this
rule
and
at
the
EPA/
OTAQ.

49
CARB,
and
the
engine
manufacturers.
11
The
purpose
of
the
MOA
is
to
specify:
1)
a
detailed
roadmap
for
developing
data­
driven
margins
based
on
a
sound
engine
and
vehicle
test
plans;
2)
the
respective
roles
and
responsibilities
of
each
party;
3)
the
exact
statistically­
based
algorithms
for
calculating
the
data­
driven
margins;
4)
how
the
final
margins
can
be
incorporated
into
the
in­
use
testing
regulations;
and
5)
the
consequences
of
failing
to
complete
the
cooperative
program
in
time
to
start
either
the
gaseous
or
PM
fully
enforceable
testing
program
as
adopted
in
today's
action.
See
section
II.
N.
of
this
preamble
for
a
more
complete
description
of
the
MOA.

As
described
at
the
beginning
of
this
section,
we
chose
the
additive
approach
for
incorporating
the
new
portable
measurement
system
accuracy
margins
into
the
NTE
thresholds.
We
did
this
to
encourage
instrument
manufacturers
to
develop
more
accurate
and
repeatable
portable
measurement
instruments
in
the
future.
A
fixed
allowance
creates
the
same
situation
that
already
exists
for
laboratory
measurement
instruments,
which
encourages
more
accurate
and
repeatable
instruments.
That
is,
with
no
allowance
or
a
fixed
allowance,
a
more
accurate
and
repeatable
instrument
will
allow
engine
manufacturers
to
allocate
a
smaller
fraction
of
their
compliance
margin
to
instrument
error.
We
will
revisit
this
issue
in
the
future
to
determine
if
the
final
margins
determined
through
the
comprehensive
program
discussed
above
should
be
reduced
or
eliminated
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
50
based
on
technical
advances
in
these
devices.
To
this
end,
we
intend
to
adjust
or
phaseout
such
a
margin
through
future
rulemaking
based
upon
improvements
to
the
measurement
equipment.
We
intend,
however,
that
no
future
action
to
revise
the
final
margins
discussed
above
would
take
effect
prior
to
2010.
The
adjustment
or
phase­
out
would
apply
to
any
engine
tested
after
such
a
rule
became
effective.

G.
Considerations
in
Deciding
on
Remedial
Action
In
determining
whether
to
pursue
some
sort
of
remedial
action
following
Phase
1
and
Phase
2
testing,
we
will
consider
supplemental
information
obtained
separately
by
us,

or
submitted
by
the
engine
manufacturer.
This
information
could
include
emissions
data
from
additional
tests
performed
with
onboard
portable
emissions
measurement
devices,
as
well
as
from
testing
conducted
using
engine
dynamometers
or
chassis
dynamometers.
The
information
may
include
an
evaluation
of,
among
other
things:
the
margin
by
which
any
exceedence
was
above
the
NTE
threshold;
the
number
of
engines
that
showed
exceedences;
the
frequency
and
duration
of
any
exceedences
as
compared
with
the
aggregate
amount
of
time
that
all
of
the
test
vehicles
were
operated
within
the
NTE
zone;

the
emissions
of
the
test
vehicles
over
the
entire
test
route,
including
average(
s);
the
projected
emissions
impact
of
the
exceedences;
and
the
relationship
of
the
exceedences
at
issue
to
the
engine
family's
ability
to
comply
with
the
applicable
standards
or
FELs.
We
will
also
consider
any
other
data
or
factors
relevant
to
determining
whether
to
pursue
some
form
of
remedial
action.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
51
H.
Quantity
of
Data
Collected
The
minimum
time
for
data
collection
from
a
test
vehicle
is
one
full
shift
(
work)

day
of
operation,
provided
that
each
test
vehicle
operates
in
non­
idle
modes
for
at
least
3
hours
during
a
typical
shift
day.
Prior
to
the
commencement
of
either
Phase
1
or
Phase
2
in­
use
testing,
the
manufacturer
will
screen­
out
from
Phase
1
testing
any
vehicle
that
the
manufacturer
reasonably
determines
is
unlikely
to
operate
in
non­
idle
modes
for
at
least
3
hours
over
a
full
shift.

In
the
event
that
a
selected
test
vehicle
does
not
operate
in
non­
idle
modes
for
at
least
3
hours
over
the
full
shift
day,
we
are
requiring
that
the
vehicle
must
be
tested
over
a
second
full
shift
day
of
operation.
Testing
shall
not
be
required
beyond
the
second
full
shift
day
even
if
that
second
day
of
testing
also
fails
to
yield,
in
the
aggregate,
3
hours
of
vehicle
operation
in
non­
idle
modes.
After
the
second
day
of
testing,
the
valid
NTE
sampling
events
will
be
evaluated
according
to
the
previously
outlined
criteria,
even
if
less
than
3
hours
of
non­
idle
data
is
collected.
In
the
event
that
no
valid
NTE
sampling
events
are
recorded
from
a
selected
test
vehicle,
that
vehicle
will
be
deemed
to
have
satisfied
the
vehicle
pass/
fail
criteria
for
the
purposes
of
this
in­
use
testing
program.
At
their
option,

manufacturers
may
conduct
in­
use
testing
for
a
longer
duration.

While
the
minimum
data
collection
requirement
described
above
applies
to
both
the
pilot
and
fully
enforceable
programs,
an
evaluation
of
in­
use
test
data
prior
to
2007
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
52
could
change
the
final
value
for
the
data
collection
period.
During
the
pilot
program,
we
will
perform
a
statistical
analysis,
in
collaboration
with
EMA,
of
the
available
in­
use
testing
data,
particularly
the
data
generated
under
the
proposed
pilot
program
described
below,
to
determine
the
necessary
parameters
of
the
test
regime.
The
end
result
could
be
either
a
longer
or
a
shorter
period
of
data
collection,
or
other
revisions
to
the
in­
use
NTE
testing
program.
We
will,
if
appropriate,
amend
the
regulations
based
on
the
outcome
of
this
analysis.

I.
Screening,
Adjustment,
and
Mileage
of
Test
Vehicles
To
help
ensure
that
testing
is
conducted
on
a
diverse
sample
of
"
qualified"

vehicles,
our
proposal
identified
a
number
of
general
pre­
selection
criteria
for
prospective
test
vehicles
within
a
designated
engine
family.
First,
test
vehicles
must
be
obtained
from
at
least
two
sources.
We
envision
the
most
common
source
of
engine
will
be
fleet
operators,
but
could
also
include
independent
operators.
As
stated
previously,
we
believe
manufacturers
will
be
able
to
leverage
existing
relationships
with
its
customers
or
use
this
program
as
an
opportunity
to
strengthen
those
relationships.
Second,
manufacturers
must
screen
each
selected
vehicle
for
proper
use
and
maintenance
and
reject
those
vehicles
which
have
not
been
properly
maintained
and
used.
Third,
prospective
test
vehicles
must
be
screened
to
identify
those
that
are
reasonably
likely
to
operate
in
non­
idle
modes
for
at
least
3
hours
over
the
course
of
a
full
shift
day
(
see
Section
II.
H.
of
this
preamble
for
more
on
the
non­
idle
and
shift
day
requirements).
Fourth,
engines
or
critical
vehicle
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
53
systems
that
have
been
tampered
with,
rebuilt,
or
subjected
to
major
repairs
that
could
affect
emissions,
will
not
be
used
in
testing.
Fifth,
test
engines
must
have
their
adjustable
parameters
set
to
the
specifications
contained
in
the
vehicle/
engine
maintenance
manual
(
i.
e.,
set
to
spec).
Sixth,
manufacturers
must
establish
appropriate
means
to
ensure
that
test
vehicles
are
operated
only
on
diesel
fuels
meeting
the
requisite
specifications
for
the
model
year
in
which
they
were
emissions
certified.
Seventh,
and
finally,
no
prospective
test
vehicles
may
be
rejected
because
of
high
mileage,
except
for
those
whose
engines
that
exceed
their
regulatory
useful
life.

We
proposed
that
each
manufacturer
submit
a
general
plan
describing
how
they
would
identify,
locate,
and
screen
vehicle
for
in­
use
testing.
The
general
plan
was
intended
to
cover
all
engine
families
selected
for
testing
by
EPA.
The
plan
was
to
indicate
whether
the
procurement
and
screening
method
may
result
in
an
emphasis
on
testing
engines
from
a
particular
type
of
driving
route
or
from
a
particular
geographic
area.
The
plan
needed
to
identify
the
business
relationships,
such
as
with
vehicle
manufacturers
or
fleet
operators,
that
would
be
used
to
recruit
vehicles.
The
plan
was
to
describe
the
methods
that
will
be
used
to
gather
available
information
about
whether
vehicles
and
engines
meet
the
seven
general
vehicle
criteria
described
above,
including
any
forms
or
procedures
that
will
be
used.
Finally,
the
plan
would
cover
situations
not
specifically
addressed
by
the
above
seven
cases.
For
example,
how
the
presence
of
an
onboard
diagnostic
(
OBD)
system
trouble
code
or
an
illuminated
malfunction
indicator
lamp
(
MIL)

would
be
treated
in
the
test
program.
Deviations
from
the
general
plan
would
need
to
be
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
54
submitted
to
EPA
for
evaluation.

The
engine
manufacturers
commented
adversely
on
the
mandatory
nature
of
the
general
plan.
They
stated
that
the
general
plan
requirements
would
unacceptably
increase
the
burden
of
the
overall
test
program
by
adding
multiple
layers
of
costs,
delays,
and
complexities.
Further,
they
claimed
that
the
requirement
is
not
consistent
with
the
"
screening"
nature
of
the
Phase
1
testing
as
described
in
the
settlement
agreement.

Manufacturers
suggested
that
a
more
reasonable
approach
for
dealing
with
this
issue,
as
described
in
the
preamble
for
the
proposal,
is
for
EPA
and
the
engine
manufacturers
to
work
together
to
develop
appropriately
detailed
guidance
documents
relating
to
recruitment,
screening,
and
preparation
of
vehicles
for
testing.
They
also
commented
that
if
the
general
plan
requirements
were
retained,
EPA
should
specify
its
review
time
for
plan
approval.

We
agree
that
it
will
likely
be
more
efficient
to
obtain
the
information
contained
in
the
general
plan
through
guidance
rather
than
specific
requirements
in
the
regulations.
We
are
currently
developing
the
guidance
with
help
from
CARB
and
the
engine
manufacturers.
The
proposed
general
plan
criteria,
as
well
as
other
items,
are
included
in
the
guidance.
It
also
includes
a
template
for
manufacturers
to
submit
the
information
suggested
in
the
general
plan.
The
manufacturers
will
not
be
required
by
the
guidance
to
provide
a
general
plan
but
if
they
do
so,
we
would
expect
the
criteria
in
the
guidance
to
be
followed.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
55
We
continue
to
feel
that
the
information
contained
in
the
voluntarily
submitted
general
plan
will
be
valuable
to
us
in
proving
a
greater
understanding
of
how
the
manufacturers
conduct
their
testing
programs
and
an
increased
confidence
in
the
test
results.
Without
this
information,
we
will
feel
compelled
to
perform
an
increased
level
of
our
own
in­
use
testing
to
validate
the
manufacturer's
test
results.
We
have
reduced
the
potential
burden
associated
with
the
voluntary
submittal
by
making
the
plan
sufficiently
general
to
cover
multiple
engine
families.
We
now
envision
an
annual
or
maybe
even
a
one­
time
submission
of
the
general
plan
with
manufacturers
only
highlighting
deviations
from
the
plan
for
a
given
engine
family.
The
aforementioned
template
will
accommodate
a
discussion
of
any
deviations.

In
response
to
comments,
we
have
also
identified
protocols
regarding
the
use
of
appropriate
diesel
fuels
or
biodiesel
fuel
blends
in
test
vehicles
and
addressing
vehicles
with
onboard
diagnostic
system
(
OBD)
trouble
codes
or
illuminated
malfunction
indicator
lamps
(
MIL).

For
test
fuels,
we
proposed
that
manufacturers
must
establish
appropriate
means
to
ensure
that
test
vehicles
are
operated
only
on
diesel
fuels
meeting
the
requisite
specifications
for
the
model
year
in
which
they
were
emissions
certified.
Engine
manufacturers
commented
that
EPA
should
provide
a
mechanism
or
approach
to
ensure
no
vehicle
failures
were
due
to
bad
fuel.
Specifically,
they
requested
that
a
real
pre­
testing
method
of
ensuring
that
a
vehicle
has
been
operated
only
on
proper
diesel
fuels
must
be
EPA
Deliberative
Material
Submitted
for
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review
on
May
6,
2005
56
developed
and
integrated
into
the
in­
use
testing
program
to
avoid
improper
and
wasteful
testing.
The
manufacturers
also
commented
that
the
proposed
provision
would
require
testing
to
be
performed
using
fuel
meeting
the
specifications
for
certification
fuel.

Requirements
to
find
and
ensure
the
use
of
such
fuel
will
be
overly
burdensome.
Finally,

they
recommended
that
the
test
fuel
provision
be
modified
to
specify
that
diesel
fuel
consistent
with
the
engine
manufacturer's
recommendations
be
used
for
testing.
This
was
a
special
concern
related
to
the
use
of
certain
biodiesel
fuel
blends.

From
the
comments
it
is
clear
that
engine
manufacturers
and
EPA
share
the
same
goals
regarding
the
use
of
test
fuels
that
are
appropriate
for
in­
use
testing,
e.
g.,
they
are
representative
of
commercially
available
in­
use
fuels
and
a
reasonable
method
be
identified
to
avoid
wasteful
testing
on
inappropriate
fuels.
After
further
discussions
with
CARB
and
engine
manufacturers
on
this
issue,
we
are
adopting
the
following
approach.

A
prospective
test
vehicle's
fuel
tank(
s)
may
be
drained
and
refilled
with
fuel
conforming
to
the
ASTM
D975
specifications
prior
to
conducting
any
test.

Manufacturers
may
not
provide
special
fuel
for
in­
use
emissions
testing.
If
fuel
is
needed
before
initiating
or
during
an
in­
use
test,
it
must
be
procured
from
a
local
retail
establishment
near
the
site
of
vehicle
procurement
or
screening,
or
along
the
test
route.

Alternatively,
the
fuel
may
be
drawn
from
a
central
fueling
source
provided
that
the
fuel
used
is
representative
of
that
which
is
commercially
available
in
the
area
where
the
vehicle
is
operated.
If
the
manufacturer
can
document
that
owner/
operator
of
the
prospective
test
EPA
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Material
Submitted
for
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review
on
May
6,
2005
57
vehicle
has
an
established
pattern
of
using
one
or
more
specific
fuel
additives
and
the
fuel
treatment
is
not
prohibited
in
the
vehicle's
owner
or
operator
manual,
the
manufacturer
may
continue
to
add
that
same
fuel
treatment
for
in­
use
testing.
Also,
the
engine
manufacturer
may
take
pre­
test
and
post­
test
fuel
samples
from
recruited
vehicles
to
ensure
that
appropriate
fuel
was
used
during
in­
use
emissions
testing.
All
fuel
test
results
must
be
reported
to
EPA.

Engine
manufacturers
have
indicated
a
special
concern
with
the
use
of
biodiesel
fuel
blends
in
prospective
test
vehicles.
We
want
to
make
it
clear
that
the
past
use
of
biodiesel
fuels
is
not
grounds
for
automatically
rejecting
the
vehicle
from
the
test
program.

Biodiesel­
fueled
vehicles
are
acceptable
if
they
use
any
biodiesel
fuel
blend
(
e.
g.,
biodiesel
blends
not
in
excess
of
B5)
that
is
either
expressly
allowed
or
not
otherwise
indicated
as
an
unacceptable
fuel
in
the
vehicle's
owner
or
operator
manual.
A
vehicle
recruited
into
the
program
with
a
biodiesel
fuel
blend
that
is
either
expressly
allowed
or
not
otherwise
indicated
as
an
unacceptable
fuel
in
the
vehicle's
owner
or
operator
manual,
may
not
be
rejected
from
testing.
Of
course,
vehicles
using
biodiesel
fuel
blends
may
have
their
fuel
tank(
s)
drained
and
refilled
with
ASTM
D975
compliant
fuel
or
an
acceptable
biodiesel
fuel
prior
to
testing.
The
use
of
fuel
additives
is
also
allowed
as
described
above.

Finally,
if
a
test
vehicle
fails
the
vehicle
pass
criteria
and
the
manufacturer
can
prove
that
a
non­
compliant
ASTM
diesel
fuel
or
prohibited
biodiesel
fuel
blend
was
used
at
any
time
during
the
in­
use
emissions
test,
that
particular
test
may
be
voided.
In
this
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
58
case,
the
vehicle
will
be
treated
as
described
above.

Turning
to
the
OBD
trouble
codes
and
MILs,
we
proposed
to
prohibit
manufacturers,
as
a
general
rule,
from
excluding
vehicles
from
in­
use
testing
if
the
vehicle
had
an
OBD
trouble
code
or
MIL
illuminated.
Further,
we
proposed
that
manufacturers
could
not,
as
a
general
matter,
remedy
the
cause
of
the
trouble
code
or
MIL
illumination
prior
to
or
during
in­
use
testing.
However,
the
existence
of
these
codes
or
lights
during
the
screening
process
may
indicate
that
the
vehicle
has
been
poorly
maintained,
tampered
with,
or
improperly
fueled.
In
these
cases
the
manufacturer
could
request
that
the
vehicle
be
rejected
from
the
program.
If
a
trouble
code
is
set
or
malfunction
light
was
displayed
after
the
vehicle
has
been
accepted
into
the
program,
this
also
would
not
be
automatic
grounds
for
eliminating
a
vehicle
or
aborting
a
test
once
it
has
begun.
Here
the
manufacturer
could
either
test
the
vehicle
with
the
code
or
ask
for
approval
to
remedy
the
cause
of
the
code
if
it
is
maintenance
related.
We
provided
a
number
of
examples
illustrating
specific
occurrences
of
OBD
codes
or
MILs
and
the
likely
disposition
of
those
vehicles
relative
to
the
testing
requirements.

The
engine
manufacturers
commented
that
testing
with
MILs
or
codes
represents
abnormal
operation
because
owners
of
heavy­
duty
vehicles
attend
to
these
problems
promptly
in
order
to
protect
their
business
operations.
Hence,
they
argued,
that
it
does
not
make
sense
to
require
testing
of
vehicles
with
these
conditions
unremedied
and
it
is
inconsistent
with
the
settlement
document
that
calls
for
testing
vehicles
during
their
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
59
"
normal
operations."
The
manufacturers
also
stated
that
there
is
no
comprehensive
OBD
program
aimed
at
flagging
emission
exceedences
or
specific
flaws
in
an
engine's
emission
control
system.
Therefore,
they
believed
it
is
unfair
to
presume
that
an
activated
MIL
or
trouble
code
necessarily
would
signify
an
emissions­
related
issue.
Finally,
manufacturers
claimed
that
having
to
ask
EPA
for
permission
to
reject
or
repair
a
vehicle
would
cause
delays
in
conducting
the
program
and
be
unnecessarily
expensive.

Although
there
is
currently
no
federal
OBD
requirement
for
heavy­
duty
diesel
engines,
EPA
is
in
the
early
stages
of
developing
such
as
requirement.
The
heavy­
duty
inuse
testing
program
needs
to
be
designed
to
accommodate
the
expected
future
OBD
regulations.
Further,
manufacturers
currently
use
diagnostic
routines
systems
to
varying
degrees
to
assist
service
technicians
in
the
repair
of
today's
engines.
To
the
extent
those
diagnostic
routines
identify
potential
problems
with
the
emissions
control
system,
it
is
appropriate
for
that
information
to
be
considered
in
the
in­
use
test
program,
even
if
the
OBD
system
is
not
designed
to
flag
emission
exceedences.
At
a
minimum,
even
today's
OBD
systems
can
potentially
identify
flaws
in
an
engine's
emission
control
system
that
could
cause
an
emissions
exceedence.
We
continue
to
believe
that
OBD
information
can
potentially
be
valuable
in
identifying
potential
in­
use
emissions
exceedences
and
understanding
their
cause.

As
in
the
proposal,
EPA
will
require
manufacturers
to
supply
known
OBD
information
both
in
regards
to
the
history
of
the
vehicles
and
their
performance
once
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
60
accepted
in
to
the
manufacturer­
run
in­
use
testing
program.
This
information
is
important
in
that
it
may
indicate
emissions­
related
problems
relevant
to
whether
the
engines
have
been
properly
designed
to
meet
emission
standards
for
the
useful
life
of
the
engine
and
whether
the
engines
are
in
fact
meeting
such
standards
during
the
useful
life
of
the
engine.

However,
EPA
agrees
with
the
comment
that
owners
of
heavy­
duty
vehicles
are
instructed
and
are
likely
to
attend
to
OBD
related
problems
promptly.
Therefore,

manufacturers
will
not
be
required
to
test
vehicles
with
a
MIL
illuminated
or
a
trouble
code
set.
We
believe
it
is
more
appropriate
to
review
emissions­
related
concerns
identified
by
the
OBD
system
without
requiring
manufacturers
to
use
such
vehicles
in
the
in­
use
testing
program,
and
the
information
that
we
receive
from
manufacturers
will
aid
in
this
review.
At
their
discretion,
a
manufacturer
may
generally
test
the
vehicle
with
the
MIL
illuminated
or
trouble
code
stored,
repair
the
vehicle
and
then
test
it
(
without
EPA
approval),
or
reject
the
vehicle
from
the
test
program
as
follows:

1.
If
a
vehicle
is
received
into
the
program
and
the
length
of
MIL
illumination
or
trouble
code
storage
is
consistent
with
proper
maintenance
and
use,
then
the
vehicle
must
be
tested
as
received
or
repaired
prior
to
testing.
If
the
vehicle
is
repaired,
the
manufacturer
must
report
the
repair
and
the
associated
MIL
illumination
or
trouble
code
to
EPA;
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
61
2.
If
the
vehicle
is
received
into
the
program
and
the
length
of
MIL
illumination
or
trouble
code
storage
is
inconsistent
with
proper
maintenance
and
use,
the
manufacturer
has
three
options.
First,
test
the
vehicle
as
received.
Second,

repair
the
vehicle
prior
to
testing
and
report
the
repair
and
associated
MIL
illumination
or
trouble
code
to
EPA.
Third,
reject
the
vehicle
from
the
test
program
and
replace
it
with
another
vehicle.
The
manufacturer
must
report
the
repaired
or
rejected
vehicle
and
its
associated
MIL
illumination
or
trouble
code
to
EPA;
and
3.
If
a
MIL
goes
on
or
a
trouble
code
is
set
during
an
in­
use
test,
the
manufacturer
has
two
options.
First,
stop
the
test,
repair
the
vehicle,
and
re­
start
the
testing.
In
this
case,
only
the
portion
of
the
full
test
results
without
the
MIL
illuminated
or
trouble
code
set
would
be
used
in
the
vehicle
pass
determination.
Second,
stop
the
test,
repair
the
vehicle,
and
initiate
a
new
test.
In
this
case,
only
the
post­
repair
test
results
would
be
used
in
the
vehicle
pass
determination.
Again,
any
repair,
and
the
associated
MIL
illumination
or
trouble
code
must
still
be
reported
to
EPA.

We
intend
to
have
developed
a
guidance
that
addresses
a
number
of
issues
pertaining
to
vehicle
recruitment,
screening,
maintenance,
and
testing.
The
document
will
also
provide
guidance
in
identifying
the
activity
thresholds
for
OBD
trouble
codes
and
MIL
illumination
referred
to
above.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
62
We
also
received
several
additional
comments
related
to
vehicle
acceptance,

vehicle
selection,
screening,
and
maintenance.
First,
we
proposed
to
require
that
a
manufacturer
notify
us
prior
to
rejecting
a
prospective
vehicle
from
the
program
for
reasons
other
than
failing
to
meet
acceptance
criteria
contained
in
the
general
plan.
The
engine
manufacturers
commented
that
they
should
not
be
required
to
notify
EPA
that
a
candidate
vehicle
has
been
rejected
if
the
owner
decides
not
to
make
the
vehicle
available
for
testing.
We
agree
that
our
proposal
to
require
advanced
notification
in
this
instance
could
be
burdensome.
We
have
amended
the
regulations
to
clarify
that
no
notification
is
required
prior
to
rejecting
a
vehicle
if
the
owner
refuses
to
participate
in
the
program.
We
have
also
clarified
the
regulations
to
require
that
a
manufacturer
must
document
and
report
the
rejection
to
EPA
as
part
of
there
normal
reporting
requirements
under
the
program.

The
second
comment
relates
to
making
sure
that
the
engines
in
the
selected
test
vehicles
are
dissimilar.
We
proposed
two
basic
different
types
of
requirements
to
help
ensure
that
the
vehicles
selected
for
testing
within
an
engine
family
displayed
variations
in
operating
regimes
and
other
usage
characteristics.
First,
manufacturers
were
to
recruit
test
vehicles
from
at
least
two
different
sources.
Second,
manufacturers
were
to
submit
a
general
test
plan
that
was
designed,
in
part,
to
identify
if
there
was
any
bias,
i.
e.,

preselection
in
a
manufacturer's
recruiting
program.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
63
The
Pennsylvania
Department
of
Environmental
Protection
(
PDEP)
asked
how
we
would
ensure
that
a
varying
sample
of
engines
within
an
engine
family
were
tested.

Specifically,
they
hypothesized
that
one
fleet
may
have
10
vehicles
with
the
same
engine
family,
and
that
the
engines
may
all
have
been
produced
on
the
same
day
under
the
same
conditions.
Further,
PDEP
suggested
that
it
may
be
tempting
for
an
engine
manufacturer
to
test
all
these
very
similar
engines.
Therefore,
they
wondered
if
EPA
had
a
strategy
to
ensure
that
test
engines
were
produced
at
different
times
and
for
different
fleets.

The
concern
expressed
by
PDEP
is
unlikely
to
be
encountered
since
manufacturers
are
required
to
select
vehicles
from
at
least
two
different
sources
and
submit
to
EPA
detailed
information
on
the
vehicles
they
select.
Further,
even
thought
the
general
plan
is
now
a
voluntary
submission,
we
expect
that
manufacturers
will
normally
provide
this
information.
This
will
help
ensure
the
manufacturer
test
programs
are
reasonably
diverse
in
test
vehicles
and
conditions.
Finally,
EPA
has
the
authority
to
conducts
its
own
in­
use
testing
if
it
has
concerns
with
the
representativeness
of
the
manufacturers'
test
results.

The
third
comment
regards
setting
adjustable
parameters.
We
proposed
that
a
manufacturer
must
set
any
adjustable
parameter
to
the
midpoint
of
its
adjustable
range
prior
to
testing.
Engine
manufacturers
asked
that
the
requirement
be
expanded
to
allow
an
adjustment
to
the
manufacturer's
recommended
setting.
We
agree
with
the
comment
and
now
allow
an
adjustable
parameter
to
be
adjusted
to
the
manufacturer's
recommended
setting
or
the
midpoint
of
its
adjustable
range
prior
to
testing.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
64
A
fourth
comment
questions
whether
engine
operating
controls
might
be
illegally
recalibrated
prior
to
testing.
We
proposed
that
engine
manufacturers
conduct
a
thorough
screening
of
each
engine
before
making
any
allowable
adjustment
or
maintenance
prior
to
testing.
The
results
of
this
screening
were
to
be
reported
to
EPA.
Also,
manufacturers
were
required
to
screen
each
selected
vehicle
for
proper
use
and
maintenance
and
reject
those
vehicles
which
have
not
been
properly
maintained
and
used.

The
PDEP
commented
that
the
process
of
implementing
supplemental
test
procedures,
e.
g.,
the
NTE,
was
developed
because
engine
manufacturers
programmed
their
engines
to
recognize
when
they
were
being
tested
by
the
federal
test
procedure
and
when
they
were
traveling
on
the
highway.
They
asked
if
we
had
contingencies
to
stop
engine
manufacturers
from
re­
flashing
the
vehicle's
electronic
control
module
in
order
to
pass
the
screening
process.

Obviously,
a
manufacturer
that
"
reflashed"
a
vehicle's
electronic
control
module
during
the
screening
process
would
not
be
generating
a
representative
sample
of
emission
results
which
is
required
when
deciding
whether
an
engine
family
is
complying
with
the
emissions
standards.
Further,
that
manufacturer
could
be
modifying
the
emissions
control
system
such
that
the
engine
is
no
longer
covered
by
a
certificate
of
conformity.
In
that
situation,
an
engine
could
be
in
violation
of
Section
203
of
the
Clean
Air
Act
and
subject
to
civil
penalties.
We
have
the
authority
to
void
the
certificate
of
conformity
for
an
engine
family
if
the
engine
manufacturer
did
not
meet
its
obligation
under
the
in­
use
testing
rules.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
65
We
also
require
manufacturers
to
report
any
steps
they
take
to
maintain,
adjust,
modify,
or
repair
the
vehicle
or
its
engine
prior
to
testing.
Falsifying
the
emissions
performance
of
an
engine
could
constitute
ground
for
voiding
a
certificate.
A
void
certificate
also
results
in
a
violation
of
Section
203
of
the
Clean
Air
Act
and
possible
civil
penalties
because
any
sold
engines
are
no
longer
covered
by
a
certificate
of
conformity.

Finally,
we
do
not
anticipate
manufacturers
resorting
to
such
practices
and
expect
to
physically
participate
in
the
manufacturer
testing
programs
to
some
extent,
including
during
vehicle
screening
and
maintenance
prior
to
testing.
Finally,
EPA
will
continue
to
conduct
some
level
of
its
own
in­
use
testing
to
validate
the
manufacturer's
test
results
and
gain
confidence
in
their
test
programs.

J.
Test
Conditions
For
all
Phase
1
testing,
we
are
requiring
that
test
vehicles
must
to
be
operated
over
normal
driving
routes,
carrying
routine
loads
during
normal
atmospheric/
environmental
conditions,
with
the
vehicle's
normal
owner/
operator
doing
the
driving.
Our
intent
is
to
record
the
emissions
from
the
test
vehicles
as
they
are
used
and
operated
on
a
normal
dayto
day
basis.

For
Phase
2
testing,
we
may
direct
engine
manufacturers
to
use
a
generic
or
specific
test
route
and
other
conditions
that
replicate
those
observed
in
the
Phase
1
testing
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
66
that
indicated
a
potential
nonconformity.
These
other
conditions
may
include
but
not
be
limited
to
specifying
the
State
and/
or
contiguous
States
in
which
testing
must
be
performed,
or
specifying
the
time
period
(
of
no
less
than
3
months
in
duration
during
which
the
testing
must
be
performed.
(
This
latter
condition
may
also
be
used
to
ensure
prompt
testing
of
Phase
2
vehicles
or
to
ensure
testing
during
periods
of
particular
atmospheric
conditions.)
In
deciding
to
make
these
elections,
we
will
take
into
account
lead
time
and
vehicle
availability
constraints.

We
requested
comment
on
whether
EPA
should
similarly
be
allowed
to
direct
a
manufacturer
to
test
specific
engine
configurations,
test
routes,
and
driving
conditions
for
Phase
1
testing
when
we
have
particular
information
suggesting
that
these
stipulations
may
help
focus
testing
on
areas
where
EPA
has
particular
emission­
related
concerns.
We
believed
that
such
an
initial
focus
might
not
only
improve
the
overall
effectiveness
of
the
in­
use
program,
but
might
reduce
the
number
of
tests
a
manufacturer
may
otherwise
need
to
conduct
if
Phase
2
testing
is
conducted
for
any
reason.

Engine
manufacturers
commented
that
Phase
1
testing
is
meant
to
quickly
screen
vehicles
for
NTE
compliance.
Further,
the
manufacturers
argued
that
specifying
detailed
test
conditions
for
Phase
1
adds
unacceptable
complexities,
time
constraints,
costs,
and
vehicle
recruitment
difficulties,
and
should
not
be
adopted.
After
reviewing
the
engine
manufacturers
objections,
we
are
not
adopting
a
"
directed"
testing
allowance
in
Phase
1.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
67
K.
Reporting
Requirements
1.
Comprehensive
In­
Use
Testing
Reports
Engine
manufacturers
will
report
test
data
and
other
relevant
information
to
EPA
on
a
regular
basis.
Specifically,
manufacturers
must
send
us
reports
for
all
engines
tested
during
a
calendar
year
quarter
no
later
than
30
days
after
the
quarter
ends.
Alternatively,

manufacturers
may
send
us
a
report
for
individual
engines
within
30
days
after
testing
is
completed.

These
reports
will
be
comprehensive
in
scope.
Manufacturers
must
detail
all
emissions
data,
engine
operating
parameters,
test
conditions,
test
equipment
specifications,

vehicle
and
engine
information
generated
during
the
manufacturer
test
program
(
e.
g.,

information
on
vehicle
maintenance
and
usage
history
with
reasons
for
rejected
vehicles,

restorative
maintenance
performed
prior
to
testing),
vehicle
pass
results,
etc.
Engine
operating
parameters
include
all
information
that
is
electronically
sensed,
measured,

calculated,
or
otherwise
stored
by
the
engine's
onboard
computer.
This
must
include,
but
is
not
limited
to,
engine
speed,
engine
torque
or
brake
specific
fuel
consumption,
engine
coolant
temperature,
intake
manifold
temperature,
intake
manifold
pressure,
and
any
parameter
sensed
or
controlled
in
order
to
modulate
the
emissions
control
system.

Manufacturers
must
also
report
any
parameters
used
to
modulate
the
emissions
control
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
68
system
so
that
we
can
readily
identify
operation
where
an
approved
deficiency
or
carveout
applies,
and
the
state
of
the
engine
during
that
operation.

Engine
manufacturers
will
follow
a
standardized,
electronic
reporting
format.
We
are
currently
developing
the
exact
content
and
form
of
the
reports
with
CARB
and
the
engine
manufacturers.
Participation
by
CARB
ensured
that
the
reporting
requirements
are
nationally
consistent
when
it
establishes
an
in­
use
NTE
testing
program
of
its
own.
The
reporting
requirements
are
detailed
in
the
regulatory
text
accompanying
today's
proposed
rule.
Additional
details,
including
the
final
reporting
format,
will
be
published
separately
by
EPA
as
a
guidance
document.

Engine
manufacturers
commented
that
our
list
of
proposed
data
requirements
was
too
extensive
and
overly
burdensome.
However,
they
acknowledged
that
the
negotiated
outline
specifies
the
submission
of
a
"...
comprehensive
report...."
The
manufacturers
also
stated
that
the
negotiated
agreement
called
for
a
standardized
reporting
format
to
be
jointly
developed
by
EPA/
CARB
and
the
engine
manufacturers.
They
noted
that
the
proposed
reporting
format
was
not
so
developed.
Finally,
they
commented
that
until
an
a
jointly
developed
format
has
been
completed,
no
final
rule
should
be
promulgated.

As
noted
above,
we
are
developing
the
reporting
format
with
the
assistance
of
the
engine
manufacturers.
We
have
entirely
eliminated
some
of
the
items
that
we
proposed
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
69
manufacturers
report
based
on
their
comments.
These
items
have
generally
been
moved
to
the
record
keeping
requirements.

As
mentioned
previously,
we
are
allowing
18
months
for
the
in­
use
testing
of
any
engine
family
be
completed
and
fully
reported
to
provide
manufacturers
with
adequate
lead
time
to
properly
planning
and
conducting
the
in­
use
test
program.
A
manufacturer
may
request
up
to
six
addition
months
to
complete
and
report
Phase
2
test
results
if
there
is
a
reasonable
basis
for
needing
more
time.
Further,
a
manufacturer
may
request
an
additional
six
month
extension.
A
successful
request
for
this
added
extension
will
be
limited
to
extraordinary
circumstances
beyond
the
control
of
the
manufacturer
and
its
customers
whose
vehicles
are
being
tested.
The
testing
and
reporting
period
begins
from
the
date
EPA
officially
notifies
the
manufacturer
that
an
engine
family
has
been
designated
for
in­
use
testing.

Engine
manufacturers
commented
that
they
were
dissatisfied
with
both
the
requirement
to
complete
all
testing
of
a
designated
engine
family
within
18
months,
and
the
option
to
request
a
six­
month
extension
for
Phase
2
testing
if
justifiable.
They
concluded
that
it
may
be
impossible
to
meet
these
deadlines
in
some
cases,
although
no
specific
examples
were
provided.
Instead,
they
asked
that
the
provision
be
deleted
or
modified
to
allow
unlimited
extensions
where
circumstances
dictate.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
70
We
believe
that
allowing
unlimited
extensions
seems
unnecessary
and
could
result
in
engine
families
exhausting
their
useful
lives
before
meaningful
compliance
data
is
generated.
We
also
think
that
18
months
is
sufficient
to
complete
testing
under
normal
circumstances.
Manufacturers
agreed
to
this
in
the
settlement
document,
which
states
that
data
from
the
testing
of
a
designated
heavy­
duty
on­
highway
diesel
engine
family
will
be
completed
and
reported
to
EPA
and
CARB
within
18
months
from
of
the
designation
of
that
family
by
EPA/
CARB.
In
the
proposal,
we
went
even
further
and
acknowledged
there
may
be
situations
where
an
additional
6
months
could
be
warranted
due
to
unforseen
and
infrequent
events.
Therefore,
we
adopted
the
test
and
reporting
period
as
proposed.

Nonetheless,
we
acknowledge
that
there
might
be
some
instances
when
unforseen
complications
may
arise.
In
order
to
ensure
the
test
program
is
successfully
initiated
with
minimum
burden
to
manufacturers,
we
will
remain
open
a
request
from
any
manufacturer
for
additional
time
beyond
the
6
month
extension.
A
successful
request
for
this
added
extension
will
be
limited
to
extraordinary
circumstances
beyond
the
control
of
the
manufacturer
and
its
customers
whose
vehicles
are
being
tested.
The
threshold
for
such
consideration
is
intended
to
be
extremely
high,
and
the
frequency
of
such
manufacturer
requests,
much
less
EPA
approval,
extremely
low.
In
no
instance,
would
the
second
deadline
extension
exceed
6
months.
Finally,
to
the
extent
that
any
such
additional
extensions
are
needed,
we
would
expect
these
to
become
non­
existent
as
manufacturers
gain
experience
with
the
in­
use
test
program.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
71
We
are
also
adopting
our
proposal
that
allows
us
to
obtain
more
information
from
the
manufacturer
than
is
specified
in
the
reporting
requirements
if
it
is
needed
to
evaluate
whether
an
engine
family
meets
the
in­
use
testing
requirements.
Engine
manufacturers
commented
that
this
allowance
was
an
open­
ended
requirement
that
was
unreasonable
and
unacceptable.

The
allowance
for
us
to
request
additional
information
is
a
general
requirement
common
to
all
of
EPA's
regulations.
There
is
nothing
unique
about
the
heavy­
duty
in­
use
test
program
that
would
diminish
the
important
of
this
requirement.
Therefore,
we
have
retained
it
in
the
final
rule.

2.
Notification
of
Individual
Vehicle
Failures.

We
are
requiring
that
manufacturers
must
"
quickly"
notify
us
when
certain
individual
vehicles
fail
the
vehicle
pass
criteria.
The
accelerated
reporting
period
for
failing
vehicles
is
designed
to
afford
EPA
the
opportunity
to
participate
in
the
diagnosis
of
vehicle
failures
and
any
resulting
follow­
up
activities.
Specifically,
we
are
requiring
such
notifications
at
two
different
points
in
the
testing
scheme.
The
first
is
when
an
engine
family
has
experienced
three
failures
in
Phase
1
testing.
This
is
the
point
where
a
manufacturer
is
fully
committed
to
testing
a
total
of
10
vehicles.
Further,
this
is
the
threshold
where,
at
the
conclusion
of
Phase
1
testing,
a
manufacturer
must
join
EPA
in
follow­
up
discussions
to
determine
whether
or
not
any
further
testing
(
i.
e.,
Phase
2),
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
72
investigations,
data
submissions,
or
other
actions
may
be
warranted.
We
require
that
a
manufacturer
notify
us
by
email
upon
the
initial
indication
of
a
potential
third
failure
in
Phase
1
testing
within
15
days.

The
second
point
is
each
time
a
vehicle
failure
occurs
during
Phase
2
testing.
In
this
case,
we
require
a
more
immediate
notification
because
of
the
increased
significance
of
such
failures.
These
failures
are
significant
because
of
the
greater
likelihood
of
a
possible
nonconformance
and
the
possibility
that
testing
needs
to
be
focused
on
specific
vehicle
configurations,
environmental
conditions,
etc.
In
this
phase
of
the
program,
we
will
require
that
a
manufacturer
notify
us
by
email
upon
the
initial
indication
of
each
potential
failure
in
Phase
2
testing
within
3
days.

In
the
proposal,
we
specified
a
more
comprehensive
scheme
for
rapidly
reporting
vehicle
failures.
Each
individual
vehicle
failure
needed
to
be
reported
to
us
within
15
days
of
conducting
the
emissions
test.
The
report
was
comprehensive
in
nature.
It
included
detailed
the
emissions
and
engine
data
from
the
test
in
addition
to
any
diagnostic
results
and
conclusions.
The
manufacturers
opposed
the
requirement,
stating
that
the
provision
was
unduly
burdensome
and
unnecessary.

We
continue
to
find
that
accelerated
reporting
of
vehicle
failures
provides
us
with
an
important
opportunity
to
participate
in
the
diagnosis
of
failing
vehicles
and
any
resulting
follow­
up
activities.
This
is
no
different
than
the
opportunity
we
provide
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
73
manufacturers
in
our
own
test
programs.
In
light
of
the
comment,
however,
we
have
reconsidered
how
our
objective
can
be
achieved
while
minimizing
any
associated
reporting
burden.
As
a
result,
we
eliminated
the
comprehensive
nature
of
the
reporting
requirement
and
made
the
requirement
a
simple
notification
when
a
potential
failure
has
been
observed.

We
also
reduced
the
frequency
of
such
notifications
to
the
two
points
in
the
testing
scheme
as
described
above.
These
two
points
in
the
testing
scheme
were
selected
because
that
is
where
failures
clearly
become
of
sufficient
interest
to
us
that
we
may
want
to
have
the
opportunity
to
participate
in
the
test
program.

3.
Carve
Outs,
Deficiencies,
or
Other
NTE
Control
Area
Exclusions
Depending
on
the
applicable
standards,
several
provisions
in
the
existing
heavyduty
diesel
engine
regulations
allow
a
manufacturer
to
temporarily
exceed
the
NTE
standards
under
certain
limited
circumstances,
or
otherwise
exclude
defined
regions
of
the
NTE
engine
control
zone
from
NTE
compliance.
(
See
65
FR
59912
and
59914
(
October
6,
2000),
and
66
FR
5040
(
January
18,
2001)).
These
exceptions
are
also
allowed
in
determining
if
a
vehicle
passes
the
vehicle
pass
criteria
as
described
in
section
II.
E.
All
such
exclusions
and
associated
test
data
must
be
fully
described
and
submitted
to
us
as
part
of
the
manufacturer's
quarterly
or
30­
day
emissions
test
result
report
that
is
required
under
the
terms
of
the
program.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
74
More
specifically,
we
are
requiring
that
a
manufacturer's
report
for
each
engine
tested
must
describe
the
parameters
that
activate
and
de­
activate
each
NTE
deficiency
as
well
as
the
engine
load
and
speed
points
used
to
define
an
NTE
carve­
out
tested
under
the
program.
This
information
must
generally
be
in
a
form
that
can
easily
be
used
to
determine
whether
a
particular
deficiency
or
carve­
out
was
encountered
when
evaluating
1
Hz
NTE
test
results.
The
information
must
be
in
a
form
that
can
be
either
loaded
directly
in
EPA's
electronic
database
or
readily
converted
by
us
into
the
required
data
input
structure.

For
each
NTE
deficiency,
the
manufacturer
must
provide
every
engine
and
operational
parameter(
s)
used
to
activate
and
deactivate
the
deficiency
as
well
as
the
associated
activation
and
deactivation
thresholds.
If
more
than
one
parameter
is
used
to
activate
or
deactivate
a
deficiency,
the
manufacturer
must
supply
the
logic
that
defines
how
those
parameters
interact.
For
any
approved
carve­
out,
manufacturers
must
provide
the
equation
or
equations
that
define
the
carve­
out
region
as
a
function
of
engine
load
and
speed.
The
engine
computer
must
broadcast
at
1
Hz,
each
parameter
used
to
activate
or
deactivate
a
deficiency.
EPA,
CARB,
and
the
engine
manufacturers
will
jointly
develop
a
template
for
submitting
the
information
to
EPA
and
CARB.
This
template
will
be
included
in
a
guidance
document
on
this
subject.

We
requested
comment
on
whether
manufacturers
should
be
required
to
electronically
identify
when
the
engine
is
operating
in
the
area
of
an
approved
carve­
out
or
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
75
deficiency
and
report
that
information
as
a
data
output
to
the
portable
emissions
measurement
systems.
Flagging
the
presence
of
a
carve­
out
or
deficiency
in
such
a
manner
appeared
feasible
as
a
relatively
minor
revision
to
the
engine's
on­
board
computer
software.
We
envisioned
the
software
changes
would
be
limited
to
manipulating
already
broadcast
or
stored
parameters.
Electronic
reporting
of
this
information
would
ease
the
data
analysis
for
the
engines
tested
in
the
manufacturer­
run,
in­
use
testing
program,
and
allow
ready
access
the
same
type
of
information
for
engines
that
may
be
tested
in
our
own
program
using
portable
emission
measurement
systems.

Manufacturers
commented
that
the
requirement
was
too
costly
and
time
intensive.

They
stated
that
valuable
electronic
control
module
(
ECM)
processing
capacity
would
be
used
just
to
provide
an
"
easy"
electronic
indicator
for
NTE
operation.
While
we
do
not
necessarily
agree
that
significant
processing
capacity
would
be
required,
we
recognize
that
requiring
manufacturers
to
add
the
electronic
capability
to
flag
NTE
deficiencies
and
carve­
outs
as
part
of
this
rulemaking
might
present
an
unreasonable
burden
in
light
of
the
resources
engine
manufacturers
have
already
committed
toward
implementing
the
upcoming
2007
emissions
standards.
We
continue
to
believe
that
electronically
reporting
NTE
deficiency
and
carve­
out
flags
on
a
real
time
basis
is
necessary
to
improve
the
efficiency
of
analyzing
in­
use
test
data.
After
consultation
with
the
manufacturers,
it
appears
that
the
2010
time
frame
could
provide
adequate
time
for
manufacturers
to
begin
implementing
such
an
ECM­
based
reporting
requirement.
We
intent
to
pursue
this
in
a
future
rulemaking
regarding
onboard
diagnostic
systems
for
heavy­
duty
vehicles.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
76
Regarding
the
availability
of
such
information
for
use
in
our
own
in­
use
testing
program,
we
can
always
request
such
information
from
a
manufacturer
in
lieu
of
receiving
it
as
part
of
the
ECM
read
out.
However,
we
want
to
ensure
that
these
requests
receive
special
handling
to
expedite
our
testing.
We
are,
therefore,
requiring
that
manufacturers
provide
engine
information
which
clearly
identifies
the
parameters
defining
all
NTE
deficiencies
and
parameters
defining
all
NTE
carve
outs
for
an
engine
family
and
associated
power
level
when
requested.
Further,
that
the
deficiencies
and
carve
outs
must
be
reported
in
sufficient
detail
for
us
to
determine
if
a
particular
deficiency
or
carve­
out
will
be
encountered
in
the
emission
test
data
from
the
portable
emission­
sampling
equipment
and
field­
testing
procedures.
Such
information
is
to
be
provided
within
60
days
of
the
request
from
EPA.

4.
Incomplete,
Invalid,
or
Voluntary
Tests
We
proposed
that
engine
manufacturers
must
report
all
results
from
emissions
testing,
including
incomplete
tests,
invalid
tests,
and
additional
tests
that
are
voluntarily
conducted.

The
engine
manufacturers
objected
to
reporting
results
from
the
types
of
tests
described
above.
They
stated
that
such
a
requirement
is
overly
burdensome
and
intrudes
on
a
manufacturer's
right
to
conduct
voluntary
tests
without
EPA
"
supervision."
Further,
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
77
the
manufacturers
also
specifically
objected
to
reporting
results
when
Phase
2
testing
was
voluntarily
undertaken.

We
continue
to
believe
that
the
results
of
incomplete
and
invalid
tests
can
yield
valuable
information
regarding
NTE
emissions
compliance
and
that
it
is
legitimate
to
have
access
to
this
information
under
in
the
context
of
the
in­
use
program.
However,
to
keep
the
reporting
burden
to
a
minimum,
we
will
only
require
manufacturers
to
notify
us
in
their
formal
reports
when
such
tests
were
conducted
for
a
selected
engine
family.
Further,

manufacturers
will
simply
be
required
to
keep
all
related
test
data
and
other
relevant
information
as
part
of
their
recordkeeping
in
case
we
ask
for
it.

We
disagree
with
the
engine
manufacturers
suggestion
that
the
results
of
testing
should
not
be
reported
to
EPA
when
a
manufacturer
voluntarily
undertakes
Phase
2
testing.
In
this
instance,
a
manufacturer
would
be
conducting
the
testing
as
a
consequence
of
the
Phase
1
test
results.
This
follow­
on
testing
is
clearly
a
logical
next
step
in
the
manufacturer­
run,
in­
use
testing
program,
and
the
results
of
such
testing
must
be
properly
reported
to
EPA.

Regarding
other
voluntary
tests
that
a
manufacturer
may
conduct
outside
of
the
manufacturer­
run,
in­
use
testing
program,
we
find
that
it
is
important
for
us
to
be
aware
when
a
manufacturer
conducts
such
testing.
Beyond
providing
valuable
information,
we
want
to
prevent
a
situation
where
voluntary
testing
might
be
interpreted
as
having
been
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
78
conducted
to
screen
test
vehicles
for
passing
results,
which
might
then
be
submitted
to
us
as
valid
tests
under
the
in­
use
program.
We
do
agree
with
the
manufacturers,
however,
to
the
extend
that
our
proposal
could
be
interpreted
as
too
broad
and
overly
burdensome.

To
accommodate
these
legitimate
concerns,
we
have
refined
our
requirements
in
this
area
as
follows.
First,
we
will
limit
this
requirement
to
voluntary
tests
conducted
on
the
same
engine
families
that
are
being
tested
under
the
in­
use
test
program.
Second,
we
will
focus
the
requirement
on
the
period
between
the
time
the
family
is
first
selected
for
testing,
until
the
final
results
of
all
testing
for
that
family
are
reported
to
us.
Third,
as
described
above
for
invalid
and
incomplete
tests,
we
will
only
require
manufacturers
to
notify
us
in
their
formal
reports
when
such
tests
were
conducted
for
a
selected
engine
family.
The
notification
must
clearly
describe
the
purpose
of
the
voluntary
testing
and
how
it
is
unrelated
to
the
vehicle
recruitment,
screening,
and
testing
conducted
under
the
manufacturer­
run,
in­
use
testing
program.
Fourth,
and
finally,
manufacturers
will
simply
be
required
to
keep
all
test
data
and
other
relevant
information
as
part
of
their
recordkeeping
in
case
we
ask
to
review
it.

L.
Measurement
of
Emissions
We
are
adopting
the
test
procedures
in
40
CFR
part
1065
subpart
J,
"
Field
Testing"
for
conducting
any
emissions
testing
required
in
this
program,
as
well
as
any
other
onboard
testing
required
for
heavy­
duty
engines
under
part
86,
subpart
N.
These
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
79
revised
requirements
are
being
promulgated
as
a
companion
rule
to
today's
final
manufacturer­
run,
in­
use
testing
rulemaking.

We
proposed
to
adopt
the
test
procedures
in
part
1065,
subpart
J,
"
Field
Testing"

for
conducting
any
emissions
testing
required
in
the
in­
use
testing
program,
as
well
as
any
other
onboard
testing
required
for
heavy­
duty
engines
under
part
86,
subpart
N.
In
our
proposal,
we
noted
that
changes
were
being
made
to
the
then
current
version
of
part
1065,

and
that
those
revisions
were
being
published
in
a
separate
companion
Notice
of
Proposed
Rulemaking
(
NPRM).
The
relevant
proposed
test
procedures
were
generally
described,

and
we
asked
that
comments
on
the
companion
NPRM
be
directed
toward
that
notice.

Manufacturers
commented
that
the
comment
period
on
the
in­
use
testing
program
be
extended
to
align
it
with
that
of
the
companion
test
procedure
proposal.
They
argued
that
the
field
testing
provision
had
not
yet
been
published
and
that
this
made
it
impossible
to
comment
in
total
on
the
proposed
in­
use
testing
program.
We
chose
not
to
extend
the
formal
comment
period
for
this
rule,
but
have
continued
to
exchange
information
with
affected
companies
over
an
extended
period
up
to
the
conclusion
of
the
final
rule.

Manufacturers
were
able
to
provide
any
comments
regarding
the
interaction
of
the
regulations
for
this
rule
and
the
rule
revising
part
1065
during
the
comment
period
for
that
rule.
There
were
no
comments
on
that
rule
that
would
indicate
that
the
effectiveness
of
this
rule
will
be
undermined
by
the
proposals
in
that
rule.
We
have
addressed
each
of
the
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
80
comments
submitted,
as
described
elsewhere
in
this
document,
and
in
the
companion
rulemaking
to
adopt
changes
to
the
test
procedures
in
40
CFR
part
1065.

1.
Pollutants
and
Other
Emissions
We
are
requiring
the
in­
use
measurement
of
the
following
pollutants
from
heavyduty
diesel
engines:
non­
methane
hydrocarbons
(
NMHC),
total
hydrocarbons
(
THC),

carbon
monoxide
(
CO),
oxides
of
nitrogen
(
NOx),
and
particulate
matter
(
PM).
We
are
also
requiring
the
measurement
of
carbon
dioxide
(
CO
2)
and
oxygen
(
O
2)
as
a
component
of
test
measurement
specifications
and
as
a
means
of
assuring
quality
control.

Recognizing
that
experience
may
show
that
the
effectiveness,
durability
and
overall
performance
of
new
engine
technologies
and
exhaust
aftertreatment
systems
may
demonstrate
that
in­
use
testing
for
certain
pollutants
is
unnecessary,
we
will
consider
requests
from
the
engine
manufacturers
to
discontinue
reporting
and/
or
measurement
of
one
or
more
pollutants
from
some
or
all
engines
based
on
future
test
experience.

In
the
proposal,
we
requested
comments
on
requiring
the
in­
use
measurement
of
NMHC
because
it
was
not
explicitly
listed
in
the
settlement
agreement.
We
noted
that
the
2007
hydrocarbon
standards
for
heavy­
duty
engines
are
written
in
terms
of
NMHC
(
or
NMHCE)
not
THC.
In
addition,
recent
testing
indicates
that
the
traditional
relationship
of
NMHC
to
THC
in
diesel
exhaust
(
typically,
NMHC
is
98%
of
THC)
is
no
longer
applicable
when
aftertreatment
like
PM
filters
are
used.
Therefore,
there
is
less
of
an
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
81
exact
correlation
between
THC
and
NMHC
emissions
and
the
traditional
way
of
correlating
such
emissions
in
our
regulations
could
lead
to
overestimation
of
NMHC
emissions.
Finally,
NMHC
can
be
measured
on­
vehicle
without
significant
further
effort.

As
a
result,
we
believed
the
measurement
of
NMHC
was
justified.

Engine
manufacturers
objected
to
mandatory
NMHC
measurement
.
They
also
objected
to
being
required
to
measure
THC
from
diesel
engines
with
catalyzed
PM
filters,

arguing
that
the
emission
control
technology
results
in
negligible
hydrocarbon
emissions.

However,
the
engine
manufacturers
wanted
to
have
the
option
of
measuring
NMHC
instead
of
THC
if
hydrocarbon
measurement
were
required.

We
are
requiring
the
measurement
of
hydrocarbons
in
the
in­
use
testing
program
and
because
NMHC
is
a
regulated
emission
with
an
associated
NTE
standard,
it
must
be
reported.
Commercially
available
portable
measurement
systems
already
report
NMHC
as
the
difference
between
measured
THC
and
methane
(
CH4)
via
dual
FID/
cutter
technology.
This
measurement
technology
already
meets
all
the
NMHC
requirements
in
Part
1065.
Additionally,
part
1065
provides
the
flexibility
to
report
NMHC
as
the
difference
between
measured
THC
and
measured
methane
(
CH4),
or
it
may
be
reported
as
0.98*
THC.
Therefore,
manufacturers
may
optionally
measure
THC
and
report
NMHC
as
0.98*
THC.
However,
we
do
not
recommend
this
approach
given
the
commercial
availability
of
suitable
portable
technology
that
would
yield
a
more
accurate
NMHC
measurement.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
82
Regarding
the
comment
about
"
negligible
NMHC"
emissions,
we
believe
that
certain
engines
and
exhaust
aftertreatment
systems
can
emit
NMHC
emissions
at
or
above
the
NTE
standard.
This
is
particularly
possible
if
the
aftertreatment
technology
uses
a
hydrocarbon­
based
reducing
agent,
e.
g.,
diesel
fuel,
to
"
regenerate"
the
aftertreatment
system.
Nonetheless,
in
cases
where
a
manufacturer
can
demonstrate
that
and
engine
and
aftertreatment
system
combination
negligible
NMHC
emissions,
the
manufacturer
may
petition
EPA
to
waive
associated
measurement
requirement,
as
we
proposed
and
are
now
adopting.

Manufacturers
also
commented
that
we
should
issue
guidance
that
outlines
reasonable
conditions
and
procedures
for
manufacturers
to
follow
in
requesting
an
emission
measurement
waiver.
We
do
not
believe
that
a
specific
guidance
document
on
this
issue
is
necessary.
The
basic
conditions
and
procedures
for
requesting
an
EPA
waiver
to
avoid
measuring
a
pollutant
is
obvious
enough.
Waivers
will
be
reviewed
on
a
case­

bycase
basis.

2.
Portable
Emission
Measurement
Systems
 
Status
and
Availability
(
Note:
This
section
is
still
under
development.)

3.
Measurement
Accuracy
Margin
Development
Program
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
83
Manufacturer
comments
on
the
NPRM
raised
objections
to
EPA's
proposed
inuse
accuracy
margin
value
of
five
percent
applicable
to
all
pollutants
covered
by
the
program.
As
EPA
sought
clarification
on
these
comments
from
the
manufacturers
and
input
from
CARB,
it
became
evident
that
there
were
legitimate
concerns
regarding
whether
or
not
the
proposed
accuracy
margins
had
been
sufficiently
proven.
In
an
effort
to
provide
further
data
to
develop
final
accuracy
margins,
EPA,
CARB,
and
the
engine
manufacturers
(
through
the
Engine
Manufacturers
Association
(
EMA))
have
entered
into
a
Memorandum
of
Agreement
(
MOA)
that
details
a
project
for
developing
data­
driven
accuracy
margins
for
the
gaseous
emissions
and
PM
fully
enforceable
programs.
(
See
section
II.
F.
3.
i.
of
this
preamble
for
more
on
the
pilot
program
accuracy
margins.)
The
MOA
addresses
the
basic
scope
and
objectives
of
the
research,
development
and
demonstration
(
RDD)
program,
program
milestones
and
schedules,
implementation
issues,

and
intended
implications
for
the
regulations.

This
RDD
program
is
expected
to
be
completed
in
two
main
phases.
The
first
phase
addresses
gaseous
emission
accuracy
margins,
the
second
phase
addresses
PM
accuracy
margins.
A
full
test
plan
has
been
prepared
for
the
gaseous
emissions
RDD
program;
the
test
plan
for
the
PM
program
is
addressed
in
the
MOA,
and
is
to
be
completed
well
prior
to
initiation
of
the
RDD
testing
effort.
Each
of
the
two
programs
is
expected
to
be
completed
in
time
to
have
data
driven
accuracy
margins
for
the
respective
fully
enforceable
programs,
2007
model
year
for
gaseous
emissions
and
2008
for
PM
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
84
emissions.
EPA
intends
to
promulgate
these
accuracy
margins
and
any
related
provisions
through
rulemaking.

The
gaseous
emissions
RDD
program
contains
four
basic
components.
First,
it
will
assess
emissions,
exhaust
flow,
and
torque
measurement
variability
of
PEMS
units
incremental
to
the
laboratory
measurement.
Second,
the
effect
of
environmental
parameters
and
of
on­
vehicle
time
on
measurement
accuracy.
Third,
on
vehicle/
trailer
emission
measurements
versus
PEMS
emission
measurements
of
the
same
operation.
And
fourth,
it
will
consider
manufacturer
voluntary
submissions
of
data
that
could
be
used
to
develop
a
margin
component
that
accounts
for
the
variability
in
key
engine
parameters
used
in
the
NTE
brake­
specific
emission
calculations.
All
of
this
information
will
be
used
to
develop
and
validate
a
computer
model
which
will
produce
a
data
driven
accuracy
margin
for
each
of
the
gaseous
emissions
to
be
proposed
as
discussed
above.

The
PM
emissions
RDD
program,
scheduled
to
begin
in
2006,
will
assess
the
same
basic
questions
as
laid
out
above.
Its
schedule
is
offset
by
approximately
one
year
to
allow
for
full
development
of
the
PM
RDD
test
program
plan
and
continued
development
of
PM
PEMS
capability.
The
PM
accuracy
margins
and
any
related
provisions
are
expected
to
be
promulgated
through
rulemaking,
with
the
intention
that
they
apply
to
the
2008
model
year
fully
enforceable
program
for
PM
emissions.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
85
The
efforts
under
this
MOA
will
be
managed
by
EPA
in
close
coordination
with
CARB
and
the
involved
engine
manufacturers.
Progress
reports
will
be
made
publicly
available.
Interested
readers
are
invited
to
review
the
full
text
of
the
MOA
which
is
available
in
the
public
docket
and
at
the
EPA/
OTAQ
website
for
this
rule.

M.
Pilot
Program
To
ensure
a
successful
launch
of
the
fully
enforceable
program
for
gaseous
emissions
testing
in
calendar
year
2007,
there
will
be
a
more
limited
mandatory
pilot
program
in
calendar
years
2005
and
2006
for
gaseous
pollutants
(
i.
e.,
nonmethane
hydrocarbons
(
NMHC),
carbon
monoxide
(
CO),
and
oxides
of
nitrogen
(
NOx)).

Similarly,
the
fully
enforceable
program
for
PM
will
be
preceded
by
a
pilot
program
for
that
pollutant
in
calendar
years
2006
and
2007.
Additionally,
one
or
both
of
the
pilot
programs
could
be
extended,
and
the
fully
enforceable
program
delayed,
in
the
unlikely
event
that
the
process
of
identifying
the
final
accuracy
margins,
discussed
above,
is
significantly
delayed
beyond
the
originally
scheduled
completion
dates.

We
will
designate
engine
families
for
testing
under
the
pilot
program
as
described
in
section
II.
B.
of
this
preamble.
In
all
likelihood,
we
will
select
2002
through
2006
model
year
engines
for
testing
under
the
gaseous
pilot
program,
and
2002
through
2007
model
year
engines
under
the
PM
pilot
program.
As
discussed
above,
we
will
only
designate
families
that
have
been
designed
to
comply
with
the
NTE.
After
receiving
our
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
86
selections,
manufacturers
will
then
conduct
in­
use
testing
based
on
the
Phase
1
testing
criteria
according
to
the
scheme
set
forth
in
section
II.
C.
of
this
preamble.
Under
those
requirements,
engine
manufacturers
must
test
up
to
10
vehicles
per
designated
engine
family.
However,
Phase
1
testing
will
be
limited
to
a
total
of
five
vehicles
for
engine
manufacturers
participating
in
the
program
to
develop
the
final
measurement
accuracy
margins
for
portable
emission
measurement
systems
as
described
in
section
II.
L.
3.
of
this
preamble.
During
the
two­
year
pilot
programs
for
gaseous
and
PM
emissions,
both
EPA
and
the
heavy­
duty
diesel
engine
manufacturers
will
gain
valuable
experience
with
the
inuse
testing
protocols,
and
the
generation,
interpretation,
and
reporting
of
in­
use
NTE
emissions
data.

The
evaluation
of
these
data
for
compliance
purposes
is
limited
to
screening
for
exceedences
of
the
FTP
certification
standards
as
well
as
the
potential
use
of
defeat
devices
as
outlined
in
prior
Agency
guidance.
The
pilot
program
data
could
also
be
used
to
screen
consent
decree
engines
certified
to
pull
ahead
NTE
requirements
for
compliance
with
the
applicable
NTE
limits.
If
the
test
results
for
manufacturers
subject
to
the
full
pilot
program
clearly
show
that
the
designated
heavy­
duty
diesel
engine
family
passes
the
Phase
1
testing
criteria
(
i.
e.,
5
out
of
5,
5
out
of
6,
or
8
out
of
10
vehicles
pass),
no
further
testing
will
be
is
required
of
that
engine
family
in
that
year.
If
the
designated
engine
family
does
not
clearly
pass
the
test
criteria
(
i.
e.,
7
or
fewer
out
of
10
vehicles
pass)
we
will
not
pursue
any
form
of
remedial
action
based
solely
on
that
data.
For
manufacturers
participating
in
the
program
to
develop
the
final
accuracy
measurement
margins
that
must
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
87
test
five
vehicles
per
designated
engine
family,
we
will
likewise
not
pursue
any
form
of
remedial
action
based
solely
on
that
data.
However,
we
may
utilize
these
latter
test
results
in
conjunction
with
our
own
test
data
and
other
information
to
assess
or
pursue
any
appropriate
enforcement
or
regulatory
action.

We
proposed
that
the
certificate
of
conformity
for
an
engine
family
may
be
voided
if
the
engine
manufacturer
did
not
meet
its
obligations
under
the
in­
use
testing
rules.

International
Truck
and
Engine
Company
commented
that
during
the
settlement
negotiations,
all
parties
recognized
that
the
2005
and
2006
pilot
programs
must
remain
flexible
in
order
for
it
to
work.
Therefore,
the
potential
consequences
of
voiding
a
certificate
of
conformity
for
failing
to
strictly
adhere
to
the
2005
and
2006
pilot
programs
directly
contradicts
the
cooperative
nature
of
the
in­
use
testing
program.

We
agree
with
the
commenter
that
the
pilot
program
needs
to
remain
flexible
and
cooperative
in
nature.
However,
we
are
retaining
the
provision
for
the
pilot
program
as
a
way
to
assure
that
all
engine
manufacturers
participate
in
that
part
of
the
mandatory
in­
use
testing
pilot
program.
We
do
not
anticipate
a
reason
to
revoke
a
certificate
of
conformity
if
the
manufacturer
shows
a
good
faith
effort
in
conducting
the
pilot
program.

N.
Public
Availability
of
In­
Use
Testing
Data
We
noted
in
the
proposal
that
in­
use
test
data
reported
under
the
program
would
be
available
to
the
general
public
for
review
and
analysis.
The
engine
manufacturers
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
12
If
EPA
receives
a
request
under
the
Freedom
of
Information
Act
for
records
relating
to
manufacturers'
required
in­
use
testing,
it
is
EPA's
standard
operating
procedure
to
initially
deny
the
requestor
any
responsive
records
containing
information
submitted
under
CBI
claims
by
the
88
objected
to
providing
public
access
to
all
test
data
and
underlying
information.
They
specifically
stated
that
information
pertaining
to
how
a
manufacturer
"
controls"
an
engine
when
achieving
in­
use
emissions
compliance
is
confidential
business
information
and
must
be
treated
as
such.
Manufacturers
stated
that
public
information
should
be
limited
to
emission
results
and
vehicle
pass
ratios.

Our
goal
is
to
ensure
the
confidentiality
a
manufacturer's
confidential
business
information
(
CBI)
while
making
the
in­
use
test
program
as
transparent
and
useful
to
others
as
possible.
After
carefully
considering
how
to
balance
these
competing
interests,

we
will
make
the
following
information
publically
available
upon
request
after
the
test
program
for
an
engine
family
has
been
completed:
engine
family,
model,
and
rating
identification;
description
of
test
route
and
test
conditions;
engine
speed
and
torque
(
when
broadcast),
mass
emissions,
and
work
performed
each
at
a
1
Hz
interval;
summary
emissions
results
(
for
each
valid
NTE
event);
vehicle
pass
ratio;
and
any
other
information
needed
to
calculate
the
summary
emissions
results
and
the
NTE
zone
for
that
engine.
We
will
also
make
available
a
generic
indication
as
to
whether
a
deficiency
or
carve­
out
has
been
encountered
for
each
second
of
the
test.
All
other
information
designated
by
a
manufacturer
as
CBI
will
be
safeguarded
and
withheld
from
public
release
by
the
Agency
subject
to
EPA's
CBI
regulations.
12
Such
information
will
include,
but
is
not
limited
to,
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
manufacturers.
The
manufacturers
who
submitted
the
information
under
CBI
claims
will
be
required
to
substantiate
their
claims,
and
the
EPA
Office
of
General
Counsel
will
make
a
final
determination
of
confidentiality
for
the
information.
See
40
CFR
2.204
and
205.

89
engine
operating
and
control
parameters
designated
CBI
during
the
certification
process
(
including
those
associated
with
auxiliary
emissions
control
devices)
and
the
information
necessary
to
identify
specific
and
complete
regions
of
the
NTE
control
zone
where:
1)
a
manufacturer
has
been
granted
an
allowance
by
EPA
to
temporarily
exceed
the
NTE
standards
under
certain
limited
circumstances
(
i.
e.,
deficiencies),
or
2)
the
emissions
contribution
from
a
portion
of
the
NTE
zone
has
been
limited
in
determining
compliance
with
the
NTE
standards
(
i.
e.,
carve­
outs).

O.
Implications
for
Other
EPA
Programs
1.
EPA
Testing
and
Supplemental
Information
EPA
reserves
its
preexisting
authority
to
conduct
repeat
testing
or
initiate
our
own
in­
use
testing
of
a
manufacturer's
heavy­
duty
diesel
engine
family.
The
purpose
of
this
testing
would
be
primarily
to
verify
and
supplement,
not
duplicate,
the
testing
program
to
be
conducted
by
manufacturers.
Therefore,
we
do
not
intend
to
conduct
routine
in­
use
NTE
testing
of
engines
or
engine
families
that
satisfy
the
Phase
1
testing
criteria,
unless
new
information
indicates
that
a
potential
nonconformity
exists.
We
will
also
inform
and
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
90
invite
the
affected
manufacturer
to
observe
any
in­
use
testing
that
we
may
conduct
which
is
related
to
this
program.

2.
Selective
Enforcement
Audit
(
SEA)
Testing
We
will
limit
the
existing
SEA
program
after
full
implementation
of
the
manufacturer­
run,
in­
use
program
solely
to
instances
where
credible
evidence
indicates
the
existence
of
a
nonconformity.
Such
evidence
may
include:
past
noncompliance
occurring
in
new
engines
or
very
early
in
the
life
of
in­
use
engines,
a
manufacturer's
quality
assurance/
quality
control
(
QA/
QC)
reporting
that
identifies
or
otherwise
indicates
a
problem,
a
significant
number
of
consumer
complaints
or
defect
reports,
or
test
data
of
any
type.

In
general,
we
anticipate
that
a
robust,
mature
manufacturer­
run
in­
use
program
would
significantly
reduce
the
role
SEA
plays
in
EPA's
compliance
program.
Assembly
line
emissions
audits
ensure
that
the
prototype
emission
control
designs
approved
during
the
certification
process
successfully
transfer
into
mass
produced
engines.
More
specifically,
SEAs
evaluate
whether
manufacturers'
design
enough
compliance
margin
into
the
certified
emissions
levels
to
account
for
the
emissions
variability
inherent
to
the
design
and
manufacture
of
a
particular
engine
and
emissions
control
system.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
91
It
is
expected
that
the
in­
use
program
will
require
manufacturers
to
target
emissions
performance
with
enough
compliance
margin
below
the
standards
to
account
for
expected
in­
use
deterioration,
and
that
this
margin
will
exceed
normal
emissions
variability
experienced
in
new
engines.
The
use
of
aftertreatment
as
the
primary
means
for
emissions
control
is
expected
further
to
reduce
EPA's
reliance
on
SEAs
as
a
compliance
tool.
These
systems
typically
function
at
high
efficiency
levels
and
without
catastrophic
failure
on
newer
engines.
If
problems
were
to
occur,
it
is
often
only
apparent
after
the
aftertreatment­
equipped
engine
has
been
in
service
for
some
period
of
time.
During
SEA
testing,
the
aftertreatment
system
will
have
experienced
little
mileage
accumulation
and,

therefore,
is
expected
perform
at
essentially
undeteriorated
levels.
For
these
reasons,
EPA
believes
SEA
testing
will
be
less
critical
for
a
vigorous
enforcement
program.

As
mentioned
previously,
there
are
circumstances
where
SEAs
would
still
be
warranted.
Those
situations
typically
involve
known
or
expected
problems
which
occur
relatively
early
in
the
engine's
useful
life,
but
have
not
been
remedied
by
the
manufacturer.

In
those
cases,
it
is
less
expensive
and
more
effective
to
remedy
the
problem
well
in
advance
of
in­
use
testing.
EPA
is
also
interested
in
occasionally
conducting
SEAs
for
small
engine
families
that
may
not
be
the
focus
of
testing
under
the
manufacturer­
run,

inuse
testing
program.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
92
3.
Deterioration
Factor
Testing
Under
our
current
emissions
certification
program
requirements,
manufacturers
of
heavy­
duty
diesel
engines
are
allowed
considerable
flexibility
in
generating
deterioration
factors
(
DFs).
The
regulations
only
generally
specify
how
to
stabilize
the
engine
system
prior
to
conducting
the
durability
testing.
All
other
aspects
of
generating
DFs,
such
as
the
durability
test
cycle
and
the
duration
of
the
testing,
are
left
to
the
good
engineering
judgement
of
the
engine
manufacturer.
Given
this
latitude,
manufacturers
have
settled
on
a
fairly
standard
set
of
methodologies
for
generating
DFs.

Deterioration
factors
are
generated
in
the
laboratory
using
an
engine
dynamometer.
After
the
engine
is
stabilized,
it
is
exercised
over
a
durability
driving
cycle
for
a
period
of
time
or
mileage
established
by
the
engine
manufacturer
as
mentioned
previously.
Emissions
are
measured
over
this
cycle
at
intervals
specified
by
the
engine
manufacturer.
The
measured
emissions
are
plotted
as
a
function
of
time
or
mileage
and
a
statistical
curve
fitting
method
is
used
to
calculate
emissions
deterioration
over
time.

Since
the
emission
tests
are
not
typically
performed
to
the
end
of
engine's
useful
life,
the
curve­
fit
is
extrapolated
to
estimate
useful
life
emissions.
Either
the
measured
initial,

early­
life
emissions
are
subtracted
from
the
extrapolated
useful
life
emissions
(
additive
DF),
or
the
useful
life
emissions
are
divided
by
the
early­
life
emissions
(
multiplicative
DF),

depending
on
the
emissions
control
technology,
to
calculate
the
DF
and
arrive
at
the
official
deteriorated
certification
test
results.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
93
The
2004
and
2007
low
emission
standards
required
for
heavy­
duty
diesel
engines
has
placed
the
efficacy
of
how
these
traditional
DF
methodologies
are
developed
and
applied
under
increased
scrutiny
by
both
EPA
and
the
engine
manufacturers.
The
reasons
are
twofold.
First,
aftertreatment
and
add­
on
emissions
control
technologies
such
as
cooled­
EGR
are
more
prone
to
deterioration
compared
to
past
engine
designs.
Second,

compliance
with
the
emissions
standards
becomes
more
sensitive
to
the
uncertainty
in
the
emissions
trends
resulting
from
these
common
DFs
methods
as
the
stringency
of
the
standards
increases.
In
the
past,
manufacturers
could
target
emissions
far
enough
below
the
relatively
relaxed
emissions
standards
in
order
to
account
for
the
inherent
DF
variability.
The
increased
stringency
of
the
2004
and
2007
standards
have
reduced
those
traditional
compliance
margins,
leaving
less
headroom
to
account
for
DF
uncertainty.

Exacerbating
the
issue
is
the
traditional
use
of
multiplicative
DFs
which
mathematically
result
in
a
larger
deteriorated
emissions
value
compared
to
an
additive
approach.

The
most
likely
solution
for
addressing
the
loss
in
confidence
with
current
DF
methods
in
the
near
term
is
for
EPA
and
the
engine
manufacturers
to
work
cooperatively
to
establish
more
robust
accelerated
DF
methodologies
in
the
laboratory.
This
would
provide
more
certain
deteriorated
certification
emission
results.
Discussions
on
such
a
solution
have
already
started
on
an
informal
basis
with
individual
manufacturers
and
will
become
more
structured
with
industry
in
the
near
future.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
94
As
a
longer
term
approach,
it
may
be
possible
to
reduce
or
eliminate
the
current
laboratory­
based
DF
methods
by
using
the
test
results
generated
as
part
of
the
proposed
manufacturer­
run
in­
use
testing
program
or
test
data
from
other
in­
use
testing
that
utilizes
portable
emission
measurement
systems
to
more
accurately
predict
in­
use
deterioration.

For
example,
a
manufacturer
may
be
able
to
demonstrate
that
DFs
generated
from
the
inuse
data
are
superior
predictors
of
useful
life
deterioration,
or
at
least
correlate
well
with
the
more
traditional
laboratory
approach
to
developing
these
factors.
To
this
end,
we
intend
to
assess
the
generation
and
submission
of
DFs
based
on
the
proposed
2005
and
2006
pilot
program.
We
will
examine
potential
ways
to
diminish
or
eliminate
burdens
on
manufacturers
of
generating
and
submitted
DFs,
while
still
generating
DFs
that
accurately
predict
in­
use
deterioration.
Any
appropriate
revisions
for
generating
DFs
would
be
promulgated
in
a
subsequent
rulemaking
action,
particularly
in
the
rulemaking
reexamining
the
accuracy
margin
discussed
in
II.
F.
above.

P.
Limitations
of
Warranty
Claims
An
exceedence
of
the
NTE
found
through
the
in­
use
testing
program
is
not
by
itself
sufficient
to
show
a
breach
of
the
warranty
under
Section
207(
a)(
1)(
A)
or
(
B).
A
breach
of
this
warranty
would
also
require
either:
1)
that,
at
the
time
of
sale,
the
engine
or
vehicle
was
designed,
built
and
equipped
in
a
manner
that
does
not
conform
in
all
material
respects
reasonably
related
to
emission
controls
to
the
engine
as
described
in
the
application
for
certification
and
covered
by
the
certificate,
or
2)
a
defect
in
materials
and
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
95
workmanship
of
a
component
or
part
that
causes
the
vehicle
or
engine
to
fail
to
conform
to
the
applicable
regulations
for
its
useful
life.
To
the
extent
that
in­
use
NTE
testing
does
not
reveal
such
a
material
deficiency
at
the
time
of
sale
in
the
design
or
manufacture
of
an
engine
compared
to
the
certified
engine,
or
a
defect
in
the
materials
and
workmanship
of
a
component
or
part,
test
results
showing
an
exceedence
of
the
NTE
by
itself
would
not
show
a
breach
of
the
warranty
under
Section
207(
a)(
1).

III.
Economic
Impacts
The
costs
associated
with
the
rule
to
implement
a
manufacturer­
run,
in­
use
NTE
testing
program
for
heavy­
duty
diesel
engines
depends
primarily
on
how
many
vehicles
are
eventually
tested
under
the
Phase
1
and
2
testing
schemes.
This
is
difficult
to
estimate
because
the
actual
number
for
each
designated
engine
family
depends
on
how
may
vehicles
pass,
or
fail,
the
vehicle
pass
criteria
at
various
points
in
the
tiered
testing
design.
It
is
also
highly
dependent
on
the
how
manufacturers
chose
to
conduct
the
test
program
and
the
availability
of
test
vehicles.
However,
based
on
our
experience
with
in­
use
emissions
testing,
including
the
development
and
use
of
portable
measurement
systems
for
compliance
testing,
we
identified
a
set
of
reasonable
testing
scenarios
that
allow
us
to
estimate
the
potential
costs
associated
with
the
program.
This
analysis
is
based
on
13
manufacturers
who
certified
71
engine
families
in
2005.
Costs
are
in
2004
dollars.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
96
Our
analysis
shows
a
total
cost
of
approximately
$
1.6
million
per
year
for
the
case
where
no
manufacturer
must
test
more
than
the
minimum
number
of
vehicles
under
Phase
1
(
i.
e.,
5
vehicles
per
engine
family).
If
all
manufacturers
were
to
test
the
maximum
number
of
vehicles
required
under
Phase
1
(
i.
e.,
10
vehicles
per
engine
family),
the
total
cost
would
be
about
$
1.7
million
per
year.
In
the
most
unlikely
worst
case
scenario
where
all
manufacturers
must
test
the
maximum
vehicles
in
Phase
1
and
2
(
i.
e.,
20
vehicles
per
engine
family),
the
total
cost
would
be
about
$
2.1
million
per
year.
Our
best
estimate
of
the
overall
cost
of
the
proposed
program
is
$
1.7
million
per
year
for
the
entire
industry.

The
Technical
Support
Document
for
this
rule
contains
a
detailed
description
of
our
economic
analysis.

Overall,
while
not
insignificant,
these
costs
are
quite
low
compared
to
other
in­
use
compliance
programs.
Moreover,
they
are
especially
attractive
in
comparison
to
a
more
traditional
in­
use
testing
program
where
the
engine
must
be
extracted
from
the
vehicle
and
tested
on
an
engine
dynamometer
in
the
laboratory.
In
that
situation,
each
engine
test
could
cost
$
25,000
if
the
vehicle
could
be
procured
from
an
in­
use
fleet.

IV.
Public
Participation
(
NOTE:
The
remaining
sections
are
from
the
proposal
and
are
being
updated.)

We
request
comment
on
all
aspects
of
this
proposal.
This
section
describes
how
you
can
participate
in
this
process.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
97
A.
How
and
to
Whom
Do
I
Submit
Comments?

We
are
opening
a
formal
comment
period
by
publishing
this
document.
We
will
accept
comments
for
the
period
indicated
under
"
DATES"
above.
If
you
have
an
interest
in
the
program
described
in
this
document,
we
encourage
you
to
comment
on
any
aspect
of
this
rulemaking.
We
request
comment
on
various
topics
throughout
this
proposal.

Your
comments
will
be
most
useful
if
you
include
appropriate
and
detailed
supporting
rationale,
data,
and
analysis.
If
you
disagree
with
parts
of
the
proposed
program,
we
encourage
you
to
suggest
and
analyze
alternate
approaches
to
accomplish
these
same
goals
described
in
this
proposal.
You
should
send
all
comments,
except
those
containing
proprietary
information,
to
our
Air
Docket
(
see
"
Addresses")
before
the
end
of
the
comment
period.
You
should
also
send
a
copy
to
the
Contact
Person
listed
above
(
see
"
For
Further
Information
Contact").

You
may
submit
comments
electronically,
by
mail,
or
through
hand
delivery/
courier.
To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
in
the
subject
line
on
the
first
page
of
your
comment.
Please
ensure
that
your
comments
are
submitted
within
the
specified
comment
period.
Comments
received
after
the
close
of
the
comment
period
will
be
marked
"
late."
EPA
is
not
required
to
consider
these
late
comments.
If
you
wish
to
submit
CBI
or
information
that
is
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
98
otherwise
protected
by
statute,
please
follow
the
instructions
in
Section
IV.
B.
Do
not
use
EPA
Dockets
or
e­
mail
to
submit
CBI
or
information
protected
by
statute.

B.
How
Should
I
Submit
CBI
To
the
Agency?

Do
not
submit
information
that
you
consider
to
be
CBI
electronically
through
EPA's
electronic
public
docket
or
by
e­
mail.
Send
or
deliver
information
identified
as
CBI
only
to
the
following
address:
U.
S.
Environmental
Protection
Agency,
Assessment
and
Standards
Division,
2000
Traverwood
Drive,
Ann
Arbor,
MI,
48105,
Attention
Docket
ID
No.
OAR­
2004­
0072.
You
may
claim
information
that
you
submit
to
EPA
as
CBI
by
marking
any
part
or
all
of
that
information
as
CBI
(
if
you
submit
CBI
on
disk
or
CD
ROM,
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
CBI).
Information
so
marked
will
not
be
disclosed
except
in
accordance
with
procedures
set
forth
in
40
CFR
part
2.

In
addition
to
one
complete
version
of
the
comment
that
includes
any
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
and
EPA's
electronic
public
docket.
If
you
submit
the
copy
that
does
not
contain
CBI
on
disk
or
CD
ROM,
mark
the
outside
of
the
disk
or
CD
ROM
clearly
that
it
does
not
contain
CBI.
Information
not
marked
as
CBI
will
be
included
in
the
public
docket
and
EPA's
electronic
public
docket
without
prior
notice.
If
you
have
any
questions
about
CBI
or
the
procedures
for
claiming
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
99
CBI,
please
consult
the
person
identified
in
the
FOR
FURTHER
INFORMATION
CONTACT
section.

C.
Will
There
Be
a
Public
Hearing?

We
will
hold
one
public
hearing
in
Washington,
D.
C.
The
hearing
will
be
held
on
the
following
date
and
start
at
the
following
time,
and
continue
until
everyone
present
has
had
an
opportunity
to
speak.

Hearing
Location
Date
Time
U.
S.
Environmental
Protection
Agency
1310
L
Street,
N.
W.

Washington,
D.
C.

Telephone:
(
202)
343­
9540
Fax:
(
202)
343­
2804
July
15,
2004
10:
00
a.
m.
EDT
If
you
would
like
to
present
testimony
at
a
public
hearing,
we
ask
that
you
notify
the
contact
person
listed
above
at
least
ten
days
before
the
hearing.
You
should
estimate
the
time
you
will
need
for
your
presentation
and
identify
any
needed
audio/
visual
equipment.
We
suggest
that
you
bring
copies
of
your
statement
or
other
material
for
the
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
100
EPA
panel
and
the
audience.
It
would
also
be
helpful
if
you
send
us
a
copy
of
your
statement
or
other
materials
before
the
hearing.

We
will
make
a
tentative
schedule
for
the
order
of
testimony
based
on
the
notifications
we
receive.
This
schedule
will
be
available
on
the
morning
of
each
hearing.

In
addition,
we
will
reserve
a
block
of
time
for
anyone
else
in
the
audience
who
wants
to
give
testimony.

We
will
conduct
the
hearing
informally,
and
technical
rules
of
evidence
will
not
apply.
We
will
arrange
for
a
written
transcript
of
the
hearing
and
keep
the
official
record
of
the
hearing
open
for
30
days
to
allow
you
to
submit
supplementary
information.
You
may
make
arrangements
for
copies
of
the
transcript
directly
with
the
court
reporter.

D.
Comment
Period
The
comment
period
for
this
rule
will
end
on
August
16,
2004.

E.
What
Should
I
Consider
as
I
Prepare
My
Comments
for
EPA?

You
may
find
the
following
suggestions
helpful
for
preparing
your
comments:

1.
Explain
your
views
as
clearly
as
possible.

2.
Describe
any
assumptions
that
you
used.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
101
3.
Provide
any
technical
information
and/
or
data
you
used
that
support
your
views.

4.
If
you
estimate
potential
burden
or
costs,
explain
how
you
arrived
at
your
estimate.

5.
Provide
specific
examples
to
illustrate
your
concerns.

6.
Offer
alternatives.

7.
Make
sure
to
submit
your
comments
by
the
comment
period
deadline
identified.

8.
To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
in
the
subject
line
on
the
first
page
of
your
response.
It
would
also
be
helpful
if
you
provided
the
name,
date,
and
Federal
Register
citation
related
to
your
comments.

V.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
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,
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
102
jobs,
the
environment,
public
health
or
safety,
or
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.

EPA
has
determined
that
this
rule
is
not
a
significant
regulatory
action
under
the
terms
of
Executive
Order
12866
and
is
therefore
not
subject
to
OMB
review.

B.
Paperwork
Reduction
Act
The
information
collection
requirements
in
this
proposed
rule
have
been
submitted
for
approval
to
the
Office
of
Management
and
Budget
(
OMB)
under
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
The
Agency
proposes
to
collect
information
to
ensure
compliance
with
the
provisions
in
this
rule.
Information­
collection
requirements
related
to
engine
manufacturers
are
in
EPA
ICR
#
1684.07.
Section
208(
a)
of
the
Clean
Air
Act
requires
that
manufacturers
provide
information
the
Administrator
may
reasonably
require
to
determine
compliance
with
the
regulations;
submission
of
the
information
is
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
103
therefore
mandatory.
We
will
consider
confidential
all
information
meeting
the
requirements
of
Section
208(
c)
of
the
Clean
Air
Act.

As
shown
in
Table
V­
1,
the
total
annual
burden
associated
with
this
proposal
is
about
720
hours
and
$
48,401,
based
on
a
projection
of
14
respondents.
The
estimated
burden
for
engine
manufacturers
is
a
total
estimate
for
both
new
and
existing
reporting
requirements.
Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information,
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.

Table
V­
1.
­­
Estimated
Burden
for
Reporting
and
Recordkeeping
Requirements
Industry
Sector
Number
of
Respondents
Annual
burden
hours
Annual
costs
Engines
14
720
$
48,401
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
104
An
agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
are
listed
in
40
CFR
part
9
and
48
CFR
chapter
15.

To
comment
on
the
Agency's
need
for
this
information,
the
accuracy
of
the
provided
burden
estimates,
and
any
suggested
methods
for
minimizing
respondent
burden,

including
the
use
of
automated
collection
techniques,
EPA
has
established
a
public
docket
for
this
rule,
which
includes
this
ICR,
under
Docket
ID
number
OAR­
2004­
0072.
Submit
any
comments
related
to
the
ICR
for
this
proposed
rule
to
EPA
and
OMB.
See
`
Addresses'
section
at
the
beginning
of
this
notice
for
where
to
submit
comments
to
EPA.

Send
comments
to
OMB
at
the
Office
of
Information
and
Regulatory
Affairs,
Office
of
Management
and
Budget,
725
17th
Street,
NW,
Washington,
DC
20503,
Attention:
Desk
Office
for
EPA.
Since
OMB
is
required
to
make
a
decision
concerning
the
ICR
between
30
and
60
days
after
[
Insert
date
of
publication
in
the
FEDERAL
REGISTER],
a
comment
to
OMB
is
best
assured
of
having
its
full
effect
if
OMB
receives
it
by
[
Insert
date
30
days
after
publication
in
the
FEDERAL
REGISTER].
The
final
rule
will
respond
to
any
OMB
or
public
comments
on
the
information
collection
requirements
contained
in
this
proposal.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
105
C.
Regulatory
Flexibility
Act
(
RFA)

The
Regulatory
Flexibility
Act
(
RFA)
generally
requires
an
agency
to
prepare
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedure
Act
or
any
other
statute
unless
the
agency
certifies
that
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
Small
entities
include
small
businesses,
small
organizations,
and
small
governmental
jurisdictions.

For
purposes
of
assessing
the
impact
of
today's
rule
on
small
entities,
small
entities
are
defined
as:
(
1)
a
small
business
that
is
primarily
engaged
in
the
manufacturing
of
diesel
engines
as
defined
by
NAIC
codes
333618
with
less
than
1000
employees
(
based
on
Small
Business
Administration
size
standards);
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.

After
considering
the
economic
impacts
of
today's
proposed
rule
on
small
entities,

EPA
certifies
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
This
proposed
rule
will
not
impose
any
requirements
on
small
entities.
The
test
procedures
that
are
established
by
this
proposed
rule
pertain
to
heavy­
duty
diesel
engine
manufacturers.
EPA
has
previously
analyzed
this
category
for
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
106
impact
on
small
entities
when
emission
standards
were
finalized
for
this
category
of
engines
in
October
of
2000
(
65
FR
59895,
October
6,
2000).
At
that
time,
EPA
noted
that
only
two
small
entities
were
known
to
be
affected.
Those
entities
were
small
businesses
that
certify
alternative
fuel
engines
or
vehicles,
either
newly
manufactured
or
modified
from
previously
certified
gasoline
engines.
The
test
procedures
proposed
by
this
action
do
not
pertain
to
the
engines
manufactured
by
these
small
businesses
and
recent
analysis
supports
that
there
are
no
additional
small
businesses
that
would
be
impacted
by
this
proposed
action.
We
continue
to
be
interested
in
the
potential
impacts
of
the
proposed
rule
on
small
entities
and
welcome
comments
on
issues
related
to
such
impacts.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
Public
Law.

104­
4,
establishes
requirements
for
federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
state,
local,
and
tribal
governments
and
the
private
sector.
Under
section
202
of
the
UMRA,
EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
rules
with
"
federal
mandates"
that
may
result
in
expenditures
to
state,
local,
and
tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
one
year.
Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective,
or
least
burdensome
alternative
that
achieves
the
objectives
of
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
107
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.

This
rule
contains
no
federal
mandates
for
state,
local,
or
tribal
governments
as
defined
by
the
provisions
of
Title
II
of
the
UMRA.
The
rule
imposes
no
enforceable
duties
on
any
of
these
governmental
entities.

EPA
has
determined
that
this
rule
contains
no
federal
mandates
that
may
result
in
expenditures
of
more
than
$
100
million
to
the
private
sector
in
any
single
year.
EPA
believes
that
the
proposal
represents
the
least
costly,
most
cost­
effective
approach
to
achieve
the
emission
compliance
goals
of
the
rule.
The
costs
associated
with
the
proposal
are
discussed
in
the
Draft
Technical
Support
Document.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
"
Federalism"
(
64
FR
43255,
August
10,
1999),

requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications."
"
Policies
that
have
federalism
implications"
is
defined
in
the
Executive
Order
to
include
regulations
that
have
"
substantial
direct
effects
on
the
States,
on
the
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
108
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.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
109
This
proposed
rule
does
not
have
federalism
implications.
It
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.

Although
Section
6
of
Executive
Order
13132
does
not
apply
to
this
rule,
EPA
did
consult
with
representatives
STAPPA/
ALAPCO,
which
represents
state
and
local
air
pollution
officials.

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.

F.
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."
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
110
This
proposed
rule
does
not
have
tribal
implications
as
specified
in
Executive
Order
13175.
This
rule
will
be
implemented
at
the
Federal
level
and
impose
compliance
costs
only
on
engine
manufacturers
and
ship
builders.
Tribal
governments
will
be
affected
only
to
the
extent
they
purchase
and
use
equipment
with
regulated
engines.
Thus,

Executive
Order
13175
does
not
apply
to
this
rule.
EPA
specifically
solicits
additional
comment
on
this
proposed
rule
from
tribal
officials.

G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
and
Safety
Risks
Executive
Order
13045,
"
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks"
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that
(
1)
is
determined
to
be
"
economically
significant"
as
defined
under
Executive
Order
12866,
and
(
2)

concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
Section
5­

501
of
the
Order
directs
the
Agency
to
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children,
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.

This
proposed
rule
is
not
subject
to
the
Executive
Order
because
it
does
not
involve
decisions
on
environmental
health
or
safety
risks
that
may
disproportionately
affect
children.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
111
The
effects
of
ozone
and
PM
on
children's
health
were
addressed
in
detail
in
EPA's
rulemaking
to
establish
the
NAAQS
for
these
pollutants,
and
EPA
is
not
revisiting
those
issues
here.
EPA
believes,
however,
that
the
emission
reductions
from
the
strategies
proposed
in
this
rulemaking
will
further
reduce
air
toxic
emissions
and
the
related
adverse
impacts
on
children's
health.

H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,

Distribution,
or
Use
This
rule
is
not
a
"
significant
energy
action"
as
defined
in
Executive
Order
13211,

"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,

or
Use"
(
66
FR.
28355
(
May
22,
2001))
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.

I.
National
Technology
Transfer
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
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
112
bodies.
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.

This
proposed
rule
is
not
related
to
any
available
and
applicable
voluntary
consensus
standards.

XI.
Statutory
Provisions
and
Legal
Authority
Statutory
authority
for
the
proposed
regulations
is
provided
by
the
Clean
Air
Act,

as
amended,
42
U.
S.
C.
§
7401
et
seq.,
in
particular,
sections
202­
208
of
the
Act,
42
USC
§
7521­
7542.

List
of
Subjects
40
CFR
Part
86
Administrative
practice
and
procedure,
Confidential
business
information,

Labeling,
Motor
vehicle
pollution,
Reporting
and
recordkeeping
requirements.
EPA
Deliberative
Material
Submitted
for
OMB
review
on
May
6,
2005
113
Dated:

___________________________________

Steven
Johnson,

Administrator
