issue-1996-10-04•Federal Register final rules — 1996-10-04
Federal Register final rules — 1996-10-04
issue-1996-10-04Federal Register final rules — 1996-10-04Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-25637 Office of the Assistant Secretary for HousingFederal Housing Commissioner; Amendments to Regulation X, the Real Estate Settlement Procedures Act: Withdrawal of Employer-Employee and Computer Loan Origination Systems (CLOs) Exemptions; Notice of Delay of Effectiveness of Rule
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 51782-51783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25637]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 3500
[Docket No. FR-3638-N-07]
RIN 2502-AG26
Office of the Assistant Secretary for Housing--Federal Housing
Commissioner; Amendments to Regulation X, the Real Estate Settlement
Procedures Act: Withdrawal of Employer-Employee and Computer Loan
Origination Systems (CLOs) Exemptions; Notice of Delay of Effectiveness
of Rule
AGENCY: Office of the Assistant Secretary for Housing--Federal Housing
Commissioner, HUD.
ACTION: Final rule; Notice of delay of effectiveness.
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SUMMARY: Due to recent legislation, this document delays until further
notice the effectiveness of a final rule revising Regulation X, which
implements the Real Estate Settlement Procedures Act of 1974 (RESPA).
This final rule was published on June 7, 1996 (61 FR 29238), and it was
corrected and revised on August 12, 1996 (61 FR 41944). Within 30 days
of the publication of this notice, the Department will provide further
notice indicating its time schedule for making effective the various
provisions of these rules.
DATES: The effective date of the final rule amending part 3500
published June 7, 1996 (61 FR 29238) and corrected August 12, 1996 (61
FR 41944), is delayed until further notice. See Supplementary
Information.
FOR FURTHER INFORMATION CONTACT: David Williamson, Director, Office of
Consumer and Regulatory Affairs, Room 5241, telephone (202) 708-4560;
or, for legal questions, Kenneth A. Markison, Assistant General Counsel
for GSE/RESPA, Grant E. Mitchell, Senior Attorney for RESPA, or Richard
S. Bennett, Attorney, Office of General Counsel, Room 9262, telephone
(202) 708-1550. (The telephone numbers are not toll-free.) For hearing-
and speech-impaired persons, these numbers may be accused via TTY (text
telephone) by calling the Federal Information Relay Service at 1-800-
877-8339. The address for the above-listed persons is:
[[Page 51783]]
Department of Housing and Urban Development, 451 Seventh Street, SW,
Washington, DC 20410.
SUPPLEMENTARY INFORMATION: In the rule published on June 7, 1996 (61 FR
29238) entitled ``Amendments to Regulation X, the Real Estate
Settlement Procedures Act: Withdrawal of Employer-Employee and Computer
Loan Origination Systems (CLOs) Exemptions,'' the Department
established an effective date of 120 days from publication: October 7,
1996. Subsequently, on August 12, 1996 (61 FR 41944), the Department
revised a document associated with that rules--Appendix D, the
Controlled Business Arrangement (CBA) Disclosure Statement Format--in
order to make it clearer how the format is to be completed.
On September 30, 1996, as part of an Omnibus Consolidated
Appropriations Act (section 2103 of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations
Act, 1997 (Cong. Rec. H11,750-51 (daily ed. September 28, 1996))), the
President signed legislation which delays the effectiveness of the
amendment to Regulation X contained in the Department's June 7, 1996
final RESPA rule relating to payments to employees. Specifically, the
Omnibus Consolidated Appropriations Act provides that the effectiveness
of the amendment contained in the June 7, 1996 rule which would have
eliminated the provision of the Department's rule providing that
section 8 of RESPA permits ``An employer's payment to its own employees
for any referral activities'' (24 CFR 3500.14(g)(1)(vii)), is delayed.
The Act also provides that the effectiveness of the following
additional provisions is delayed: (1) the exemption for employer
payments to managerial employees (Sec. 3500.14(g)(1)(viii) of the June
7 rule); (2) the exemption for employer payments to employees who do
not perform settlement services in any transaction
(Sec. 3500.14(g)(1)(ix) of the June 7 rule); and (3) the provision
clarifying that ``A payment by an employer to its own bona fide
employee for generating business for that employer'' is permissible
(Sec. 3500.14(g)(1)(vii) of the June 7 rule).
Although not required by the legislation, the Department has
determined to delay temporarily the effectiveness of the June 7 rule,
as corrected and revised on August 12, in its entirety, and to continue
the prior rule, as in effect on May 1, 1996 and as corrected on
September 3, 1996 (61 FR 46510). This will provide the Department with
an opportunity to analyze the legislation and develop an appropriate
time schedule for making effective the various provisions of these
rules. Within 30 days of publication of this notice, the Department
will publish further information indicating this time schedule.
Affected persons are advised to comply with the guidance contained
in the three Statements of Policy published simultaneously with the
June 7, 1996 rule (61 FR 29255-29266), except to the extent that the
guidance in them interprets rule provisions that are delayed from
becoming effective. To ease any compliance burden on industry, the
Department's position is that, until further notice, persons are free
to use the revised CBA disclosure statement format published on August
12, 1996, if they so choose, or they may continue to use the format
which was in effect on May 1, 1996.
Dated: October 2, 1996.
Stephanie A. Smith,
General Deputy.
[FR Doc. 96-25637 Filed 10-3-96; 8:45 am]
BILLING CODE 4210-27-M
Complete official Federal Register PDF
FR Doc. 96-25549 Karnal Bunt
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 52190-52213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25549]
[[Page 52189]]
_______________________________________________________________________
Part V
Department of Agriculture
_______________________________________________________________________
Animal and Plant Health Inspection Service
_______________________________________________________________________
7 CFR Part 301
Karnal Bunt Disease; Domestic Plant-related Quarantine; Final Rule
Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Rules
and Regulations
[[Page 52190]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 96-016-14]
Karnal Bunt
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are establishing criteria for levels of risk for areas with
regard to Karnal bunt and for the movement of regulated articles based
on those risk levels, and are establishing criteria for the planting of
seed from Karnal bunt host crops. These actions are warranted because
they relieve unnecessary restrictions on areas regulated because of
Karnal bunt, while guarding against the artificial spread of that
disease. We are also making final, with some changes, the Karnal Bunt
regulations established in a series of interim rules, and are removing
some areas from the list of areas regulated because of Karnal bunt.
EFFECTIVE DATE: November 4, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Mike Stefan, Operations Officer, Domestic and Emergency Operations,
PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-1236, (301)
734-8247.
SUPPLEMENTARY INFORMATION:
Background
Karnal bunt is a fungal disease of wheat (Triticum aestivum), durum
wheat (Triticum durum), and triticale (Triticum aestivum X Secale
cereale), a hybrid of wheat and rye. The establishment of Karnal bunt
in the United States would have significant consequences with regard to
the export of wheat to international markets. Karnal bunt is caused by
the smut fungus Tilletia indica (Mitra) Mundkur and is spread by
spores. The regulations regarding Karnal bunt are set forth in 7 CFR
301.89-1 through 301.89-14.
On March 8, 1996, Karnal bunt was detected in Arizona during a seed
certification inspection done by the Arizona Department of Agriculture.
On March 20, 1996, the Secretary of Agriculture signed a ``Declaration
of Extraordinary Emergency'' authorizing the Secretary to take
emergency action under 7 U.S.C. 150dd with regard to Karnal bunt within
the States of Arizona, New Mexico, and Texas. In an interim rule
effective on March 25, 1996, and published in the Federal Register on
March 28, 1996 (61 FR 13649-13655, Docket No. 96-016-3), the Animal and
Plant Health Inspection Service (APHIS) established the Karnal bunt
regulations (7 CFR 301.89-1 through 301.89-11), and quarantined all of
Arizona and portions of New Mexico and Texas because of Karnal bunt.
The regulations define regulated articles and restrict the movement of
these regulated articles from the quarantined areas.
After the establishment of the regulations, Karnal bunt was
detected in seed lots that were either planted or stored in California.
On April 12, 1996, the Secretary of Agriculture signed a ``Declaration
of Extraordinary Emergency'' authorizing the Secretary to take
emergency action under 7 U.S.C. 150dd with regard to Karnal bunt within
California. In an interim rule effective on April 19, 1996, and
published in the Federal Register on April 25, 1996, APHIS also
quarantined portions of California because of Karnal bunt (61 FR 18233-
18235, Docket No. 96-016-5). In an interim rule effective on June 27,
1996, and published in the Federal Register on July 5, 1996, we removed
certain areas in Arizona, New Mexico, and Texas from the list of areas
quarantined because of Karnal bunt (61 FR 35107-35109, Docket No. 96-
016-6). That list was amended in a technical amendment effective on
July 9, 1996, and published in the Federal Register on July 15, 1996
(61 FR 36812-36813, Docket No. 96-016-8). In an interim rule effective
June 27, 1996, and published in the Federal Register on July 5, 1996,
we amended the regulations to provide compensation for certain growers
and handlers, owners of grain storage facilities, and flour millers in
order to mitigate losses and expenses incurred because of actions taken
by the Secretary to prevent the spread of Karnal bunt (61 FR 35102-
35107, Docket No. 96-016-7).
In a proposed rule published in the Federal Register on August 2,
1996 (61 FR 40354-40361, Docket No. 96-016-10), we proposed to
establish criteria for levels of risk for areas with regard to Karnal
bunt and the movement of regulated articles based on those risk levels,
and to establish criteria for seed planting.
Comments from the public regarding the interim rules and the
proposed rule were required to be received by APHIS by September 3,
1996. During the comment period, public forums were conducted in
Washington, D.C.; Kansas City, MO; Phoenix, AZ; Imperial, CA; and Las
Cruces, NM, to accept public comment on the regulations.
We received a total of 178 comments on the interim rules and the
proposed rule by September 3, 1996. The commenters included members of
Congress, State departments of agriculture, agricultural associations
and councils, local governments, the wheat industry, academia, and
other members of the public. The information we received from
commenters was a valuable resource in formulating this final rule. We
consider refinement and improvement of the Karnal bunt program an
ongoing process, and welcome data that will enable us to protect wheat-
growing areas of the United States, while causing the least possible
disruption to affected areas.
We discuss below each of the issues raised by the commenters. We
first discuss those comments addressing the Karnal bunt regulations
that were established by the series of interim rules. These regulations
were established on an emergency basis and are currently in effect. We
then discuss those comments that address our August 2, 1996, proposal
to amend the Karnal bunt regulations. Based on the comments received,
we have made a number of changes to the existing Karnal bunt
regulations, as well as to the regulatory revisions we proposed. In
most cases, changes that were prompted by a specific comment
recommendation are identified with our discussion of that comment.
Additionally, as part of our discussion of our proposed rule in this
document, we set forth a summary of the broad changes we are making to
the way we will classify regulated areas, and the practical
implications of falling into a particular classification category.
It is important to note that this final rule does not change or
make final the interim rule made effective June 27, 1996, and published
in the Federal Register on July 5, 1996, in which we amended the
regulations to provide compensation for certain growers and handlers,
owners of grain storage facilities, and flour millers in order to
mitigate losses and expenses incurred because of Karnal bunt. We are
still considering issues related to compensation.
Comments Addressing the Interim Rules
Several commenters supported the provisions of the interim rules. A
number of these, however, recommended certain additions to the
regulations. Each of these recommendations is discussed below.
Control and Eradication of Karnal Bunt
A number of commenters stated that, although it is possible to
control the spread of Karnal bunt, it is impossible to eradicate it
from the United States,
[[Page 52191]]
that no bunt or smut disease of grain crops has been eradicated, that
Karnal bunt has likely existed in the United States for a number of
years now, and that a program of management should be substituted for
the current eradication program. Several commenters stated that
focusing on the artificial spread of Karnal bunt ignores the natural
spread of the disease, particularly from Mexico into the United States.
As a regulatory agency, we consider eradication a reasonable first
objective in dealing with a new quarantine pest. This position has been
supported by various industry groups, State departments of agriculture,
and officials involved in international trade. The Karnal bunt
regulations are intended to prevent the artificial spread of the
disease by minimizing the risk of spread of the causal agent to other
wheat production areas.
Tolerance Levels for Karnal Bunt
A number of commenters stated that the tolerance level for spores
in grain should be a biological zero, not an absolute zero, and that
scientists need to determine the number of spores and the conditions
necessary to perpetuate the disease. Several commenters stated that the
emphasis of the quarantine should be on the risk of spreading Karnal
bunt and not on control of the spore, that non-bunted wheat should be
certified ``free from'' Karnal bunt if no bunted kernels or only low
levels of spores are present, and that ``free from'' status should be
accorded to areas where no evidence exists that fields are likely to
manifest the disease. One commenter recommended that all fields in
which bunted kernels are not found should be released from quarantine.
Another commenter stated that infestation should be defined in
Sec. 301.89-1 as the presence of bunted kernels caused by Karnal bunt,
and not include any stage of development of the fungus Tilletia indica
(Mitra) Mundkur. One commenter stated that APHIS should remove the
Karnal bunt quarantine, establish a commercial tolerance for Karnal
bunt, and allow the market to provide incentive to the industry to
minimize disease spread through price adjustments. Another commenter
stated that APHIS should assume that any test that discovers fewer than
ten spores is a coincidental contamination.
We are making no changes based on these comments. APHIS does not
use a zero tolerance approach to survey and railcar testing. Our test
procedures, which were developed in concert with State and industry
representatives, provide a reasonable assurance that detecting a spore
count of 1 or more in a 50-gram sample will identify levels of Karnal
bunt that present a risk of spreading the disease. Because it is the
objective of the regulatory measures to prevent the further spread of
the pathogen, it is APHIS' policy to accept the limited risk posed by
spore counts that might be lower than this level. Although tolerance
levels have been established as a quality factor for various fungal
toxins that are widespread in the United States, these toxins are of
concern only when they reach levels at which they might adversely
affect the health of humans or animals. Therefore, their presence below
a certain level, while detectable, is not of concern. This is not the
case for Karnal bunt, where detectable levels present a risk of
spreading the disease.
Characterization of Karnal Bunt
A number of commenters disagreed with our description of Karnal
bunt as a ``serious fungal disease.'' One commenter stated that Karnal
bunt, at its previous worst known rates of infection of grain in the
world, is not strong enough to do any damage to the resultant flour
taste, smell, or color. A number of commenters stated that several
other grain-related diseases have a greater economic impact than Karnal
bunt, and that these diseases are allowed tolerances and are handled by
grading techniques within the grain industry. The commenters
recommended that such an approach be allowed for Karnal bunt. One
commenter stated that the Biological Assessment group in APHIS, Plant
Protection and Quarantine, has concluded that Tilletia indica
represents a high ``Pest Risk Potential'' in the United States, as
estimated by internationally recognized pest risk analysis procedures.
The commenter stated that other evaluators, using the same standard as
that used by APHIS, have judged the pest risk potential of Tilletia
indica to be low. According to international guidelines, Pest Risk
Assessment consists of evaluating the likelihood of a pest's
introduction and the consequences of such an introduction. We rate the
consequences by calculating the Pest Risk Potential according to five
elements that rate a pest's climatic range, host range, dispersal
potential, and economic and environmental impacts. As part of a 1995
Karnal bunt Pest Risk Assessment, APHIS concluded that, for the United
States, the Pest Risk Potential of the Karnal bunt fungus was high.
This rating was objectively based on the determinations that: (1) The
Karnal bunt fungus is able to survive in four or more hardiness zones;
(2) the Karnal bunt fungus attacks multiple species within a single
plant family; (3) the Karnal bunt fungus produces many spores that may
be distributed over long distances; (4) the Karnal bunt fungus has the
potential to cause yield loss, lower commodity values and result in
loss of markets; and (5) the presence of the fungus might trigger
control programs with environmental impacts.
We acknowledge that the use of the word ``serious'' in describing
Karnal bunt can be open to several interpretations. We believe that the
greatest impact of the establishment of Karnal bunt is on the export of
U.S. wheat to foreign markets, a $5 billion industry annually. Karnal
bunt is a pest of quarantine significance throughout the world and
jeopardizes the continued trade of U.S. wheat. However, because we
agree that our use of the word ``serious'' has caused some confusion,
we do not refer to Karnal bunt as a serious disease in this final rule.
One commenter questioned why the description of Karnal bunt in the
definitions in Sec. 301.89-1 did not describe the disease as one
``which is new to or not widely prevalent or distributed within and
throughout the United States.'' The commenter said such a description
of Karnal bunt appears in the definition of Karnal bunt in Sec. 319.59,
as established on October 13, 1983. The commenter stated that the
modifying phrase implies that the Department acknowledged that Karnal
bunt existed in the United States as early as 1983. We do not agree
with the commenter's conclusion. It is true that Karnal bunt is
described in Sec. 319.59-1 as a disease that is ``new to or not widely
prevalent or distributed in and throughout the United States.''
However, that reference to Karnal bunt is included in the ``Foreign
Quarantine Notice'' section of title 7 of the Code of Federal
Regulations. The wording there is consistent with the statutory
language in the United States Code (7 U.S.C. 160) which states that
``in order to prevent the introduction into the United States of any
tree, plant, or fruit disease or of any injurious insect, new to or not
theretofore widely distributed throughout the United States,'' the
Secretary of Agriculture may establish importation regulations to
prevent such introduction. The modifying phrase ``new to and not
heretofore widely prevalent or distributed within and throughout the
United States'' is used in other importation regulations in 7 CFR part
319, and it does not imply that the disease in question already exists
in the United States.
[[Page 52192]]
Regulated Articles
Several commenters recommended that the list of regulated articles
in Sec. 301.89-2 be expanded. The items recommended for inclusion, the
commenters' rationale for the additions, and our responses are as
follows:
Rye: One commenter stated that the 1991 APHIS Pest Risk Analysis on
Karnal bunt includes rye (Secale cereale) as a host of the disease. We
are making no changes based on this comment. The 1991 Pest Risk
Analysis included rye and several species of grasses that are reported
to demonstrate a degree of susceptibility to infection when inoculated
(or forced) in the laboratory. Karnal bunt has not been reported on
these species under natural conditions.
Seeds and grain of crops other than wheat, durum wheat, and
triticale that pass through contaminated facilities or that move out of
a regulated area: One commenter stated that seed crops are of
particular concern because they may be planted in fields that are
subsequently planted with a host crop. Several other commenters stated
that stringent restrictions should be placed on the movement of all
seed out of quarantined areas. We are making no changes based on these
comments. We consider the possible contamination of seed other than
wheat, durum wheat, and triticale to pose a negligible risk. The amount
of inoculum on non-host seed and the opportunity to infest a host would
be small. For non-host seed moving out of a regulated area, the
inoculum moving with the seed would originate from a field where a non-
host crop was planted and that was destined to be planted with a non-
host crop.
Seed crops other than host crops harvested from fields infested
with teliospores: One commenter stated that seed crops, especially
those seed crops where soil contaminates the harvested seed, could
become contaminated with teliospores. The commenter additionally stated
that crops such as dry edible beans and soybeans are particularly prone
to soil contact and contamination. We are making no changes based on
this comment, for the same reasons cited immediately above.
Seed crops other than host crops planted near an infected crop: One
commenter recommended that a buffer be required to minimize the risk of
contamination from airborne teliospores, especially if any infested
fields will be harvested, which creates dusty conditions. Again, we
consider the risk of the movement of the Karnal bunt causal agent with
seed other than wheat, durum wheat, and triticale to be negligible.
Apiary equipment placed in fields contaminated with teliospores:
Several commenters stated that such equipment can carry contaminated
soil, and that, additionally, there may be a risk of the bees'
disseminating teliospores. We are making no changes based on this
comment. We not do not consider the movement of apiaries to present a
significant risk of spreading Karnal bunt. Hives are usually not set in
the fields.
Animals fed crops susceptible to Karnal bunt: Several commenters
noted that animals that have fed on susceptible crops may not have
passed all of the feed through their systems when moved, or may
transport soil from infected areas. We are making no changes based on
this comment. We consider the risk of possible contamination due to
animal movement to be negligible. The amount of inoculum moving with
the animal would be small, and would have little opportunity to infect
a suitable host. In most cases, the animals would be moved to a
stockyard, and it is not likely that the manure from the animals at the
stockyard would be collected and distributed on a field to be planted
with wheat. However, soil from areas where field crops are produced and
manure from animals that have fed on untreated or raw wheat, durum
wheat, and triticale are regulated articles.
Nursery stock accompanied by soil from contaminated fields: One
commenter stated that nursery stock accompanied by soil from
contaminated fields should be regulated. We do not consider it
necessary to make any changes based on this comment. Soil from areas
where field crops are produced is already regulated and, under the
Karnal bunt program, is not allowed to be moved.
Any machinery, farm equipment, or means of conveyance that could
move soil from areas where field crops are produced: One commenter
cited spray and fertilizer equipment used in contaminated fields as
potentially contaminated equipment. In establishing the list of
regulated articles, it was our intent that any farm equipment that
could move soil within or from the regulated area should be regulated.
We are therefore revising the list of regulated articles at
Sec. 301.89-2(j) of the regulations to refer to used farm tools and
equipment.
One commenter stated that the listing in Sec. 301.89-2 of ``soil
from areas where field crops are produced'' as a regulated article
should be interpreted strictly to include soil that adheres to
propagative plant parts, including seeds. We agree with the commenter,
and consider the regulations as written adequate to effect such
enforcement.
One commenter stated that ``soil'' should not be interpreted to
include such materials as dust or road film. We believe the definition
of soil as set forth in Sec. 301.89-1 of this final rule addresses the
commenter's concerns and clarifies our intent. Soil is defined in the
final rule as ``the loose surface material of the earth in which plants
grow, in most cases consisting of disintegrated rock with an admixture
of organic material.'' Under this definition, we do not consider dust
or road film to be ``soil.''
One commenter recommended that the list of regulated articles in
Sec. 301.89-2 be modified as follows: The current listing of ``manure
from animals that have fed on wheat, durum wheat, or triticale'' should
be changed to ``manure from animals which have been fed untreated or
raw wheat, durum wheat, triticale, or byproducts thereof which have
tested positive for Karnal bunt;'' ``soil from areas where field crops
are produced'' should be changed to ``soil from crop production fields
proven to contain Karnal bunt;'' and ``any other product, article, or
means of conveyance when an inspector determines that it presents a
risk of spreading Karnal bunt due to its proximity to an infestation of
Karnal bunt * * *.'' should be changed to ``any contaminated product,
article, or means of conveyance when an inspector determines that
Karnal bunt contamination exists and the conveyance presents a risk of
spreading Karnal bunt* * *.'' We are making no changes based on this
comment. We consider a risk to exist in the movement of each of the
categories of the regulated articles the commenter suggested relaxing,
and that appropriate safeguards are needed based on the level of risk.
We do recognize that there is little risk from ``manure from animals
that have been fed treated millfeed,'' and are adding this exemption to
the regulations.
The list of regulated articles in Sec. 301.89-2 includes soil from
areas where field crops are produced. One commenter stated that this
listing would unfairly apply to soil from areas where suspect wheat
seed was planted, but then was destroyed and not grown to harvest. The
commenter stated that the risk from such soil is very significantly
less than for soil where the wheat crop was allowed to mature. In this
final rule, we continue to consider as a regulated article the soil
described by the commenter. We consider it necessary to regulate any
article that presents a risk of spreading the causal agent of Karnal
[[Page 52193]]
bunt. However, we base the extent of regulation on the level of risk.
This rule categorizes areas based on risk and imposes appropriate
regulatory actions for each. These risk categories are discussed in
this SUPPLEMENTARY INFORMATION under the heading ``Regulated Areas.''
One commenter stated that quarantines imposed because of Karnal
bunt should affect no crops other than wheat. In conducting the Karnal
bunt program, we have focused our regulatory efforts on wheat
production activities. However, in some cases, as with the movement of
root crops with soil, we consider there to be sufficient risk to
warrant regulatory activity.
One commenter stated a connection should be made in the regulations
between all regulated articles and Karnal bunt host crops. We do not
agree that the rationale for regulating an article should rest solely
on whether it had direct contact with Karnal bunt host crops. A number
of the articles we are regulating pose a risk of spreading Karnal bunt
because of the danger that soil on the article from the regulated area
might transmit the Karnal bunt causal agent.
One commenter recommended, without explanation, that several
articles be removed from our list of regulated articles. We are not
certain of the commenter's rationale for recommending the removal of
the articles in question, and continue to consider it necessary to
regulate those articles listed in Sec. 301.89-2.
Actions of Individual States
One commenter stated that the regulations should specifically
provide that infested articles moving under limited permit may do so
only after concurrence by the destination State and other States
through which the regulated article would traverse. We are making no
changes based on this comment. As part of the Karnal bunt program, we
are not allowing grain that tests positive for Karnal bunt to move out
of the quarantined area. Other contaminated articles must be cleaned
and sanitized before such movement. We are notifying destination States
of grain that has tested negative and is moving under limited permit to
approved mills. We do not believe there is sufficient risk involved
with the controlled movement of these articles to warrant additional
restrictions on their movement.
Several commenters recommended that the Department prohibit
individual States from imposing restrictions on Arizona agricultural
products that, in effect, preempt APHIS standards. State regulations
cannot preempt APHIS' regulations. While, as a practical matter, the
Department cannot prohibit States from imposing restrictions on
agricultural products, affected persons could assert Federal preemption
as a legal basis for seeking relief from any State regulation that is
inconsistent with APHIS' regulations.
Restrictions on Movement
One commenter stated that the provisions in Sec. 301.89-5 regarding
the issuance of a certificate or limited permit should specifically
state that any Karnal bunt potential host crop grown on land with a
history of infestation with Karnal bunt teliospores is not eligible for
certification. We are making no changes based on this comment. In
Sec. 301.89-4 of this final rule, we prohibit the planting of host
crops in fields that tested positive and in fields planted in 1995 with
seed known to be contaminated with Karnal bunt.
Several commenters recommended that no commercial seed be allowed
to leave a quarantined area under any conditions. We are making no
changes based on this comment. The regulations already prohibit the
movement of commercial wheat, durum wheat, and triticale seed from the
quarantined area. We consider risk from the possible contamination of
seed other than from host crops to be negligible. With regard to
commercial seed, the regulations in Sec. 301.89-6 of this final rule
set forth the criteria under which a regulated article may move from a
regulated area, accompanied either by a certificate or a limited
permit. Commercial seed does not meet the criteria for movement outside
the regulated area either with a certificate or a limited permit, in
that the commercial seed would, among other things, need to: (1) Be
tested free of Karnal bunt; (2) have been grown, produced,
manufactured, stored, or handled in a manner that would prevent
infestation or destroy all live stages of Karnal bunt; or (3) have been
treated in accordance with approved methods. Current testing and
treatment procedures do not exist for large quantities of commercial
seed intended for planting outside the regulated area that would ensure
such seed could be certified free of Karnal bunt. To be eligible for a
limited permit, the risk of the seed spreading Karnal bunt would have
to be eliminated by the destruction of the pathogen of Karnal bunt, or
be mitigated by specified handling, utilization, or processing.
Commercial seed to be used for planting would not meet these criteria.
One commenter recommended that the regulations require that any
wheat that is to be used for seed be harvested with a fumigated combine
and be transported in vehicles that have been fumigated, and that the
grain be thoroughly tested for spores prior to being certified for
planting. We are making no changes based on this comment. We have
developed sanitization and testing protocols for seed moving within the
area. Additionally, this final rule requires that all wheat seed to be
planted within the regulated area be sampled and tested for Karnal
bunt, and, for seed originating in a regulated area, treated prior to
planting.
A number of commenters opposed what they called a ``strict''
quarantine regarding Karnal bunt in the southwest United States due to
its potential impact on the movement of germplasm, winter nurseries,
and ``off-season'' increases for spring and winter cereals used in many
northern States. We understand the importance of the southwest United
States in wheat breeder research. However, we consider the movement of
seed for planting a high risk activity and currently do not allow its
movement outside the regulated area, except for limited quantities of
research seed. We are allowing germplasm and research seed to move
under conditions involving testing, treatment (described below), and
subsequent monitoring. We will continue to work with researchers and
industry to develop protocols and treatments that will allow movement
of seed to resume.
In this final rule, we are setting forth an approved treatment for
seed used as germplasm or for research purposes. To be eligible for
movement, the seed must be treated with a 1.5 percent aqueous solution
of sodium hypochlorite (=30 percent household bleach) containing 2 ml.
of Tween 20TM per liter agitated for 10 minutes at room
temperature followed by a 15-minute rinse with clean, running water and
then by drying, and either: (1) With 6.8 fl. oz. of Carboxin thiram (10
percent+10 percent, 0.91+0.91 lb. ai./gal.) flowable liquid and 3 fluid
ounces of pentachloronitrobenzene (2.23 lb. ai./gal.) per 100 pounds of
seed; or (2) with 4.0 fluid ounces of Carboxin thiram (1.67 + 1.67 lb.
ai./gal.) flowable liquid and 3 fluid ounces of pentachloronitrobenzene
(2.23 lb. ai./gal.) per 100 pounds of seed.
Several commenters urged the Department to develop specific
protocols to outline procedures for shipment of seed within and outside
of quarantined areas, seed treatment requirements, certification
requirements, and the movement of germ plasm. One commenter stated that
[[Page 52194]]
this protocol should address germ plasm, foundation, registered,
certified, and uncertified seed. We have developed protocols for
testing, treatment, and movement of commercial seed within the
regulated area and limited quantities of research seed out of the
regulated area. (For more information regarding these protocols, please
contact the individual listed in this final rule under FOR FURTHER
INFORMATION CONTACT.) Currently, however, movement of commercial seed
to destinations outside the regulated area is considered a high risk
and adequate treatment and safeguard conditions have not been
developed.
One commenter recommended that the regulations allow seed infected
with Karnal bunt that is not to be used for propagation to be used for
feed, milling, or other non-propagative purposes. We agree with the
commenter that the seed described can be safely used under certain
conditions. We are continuing to cooperate with the industry, States,
and export partners to develop additional options for grain testing
positive.
One commenter stated that because movement of grain to mills and/or
export destinations is always to expedite the end use of the grain,
such transport of byproducts and grain with low spore numbers should
not be an issue. Another commenter stated that as long as wheat and
wheat byproducts infected with Karnal bunt are segregated from other
wheat, and the identity of the wheat and wheat byproducts is preserved
through the marketing chain, such wheat and byproducts should be
allowed to move to end users willing to comply with specified sanitary
precautions. During the 1996 harvest, we were able to provide a means
to move wheat from regulated areas with appropriate safeguards and to
minimize the risk to other wheat producing areas. Based on survey
information from the 1996 harvest, we are removing requirements for the
treatment of millfeed and the sanitization of equipment for some parts
of the regulated areas.
One commenter stated that APHIS should in some way encourage grain
ports to handle wheat grown in quarantined areas. Another commenter
requested that a procedure be developed to allow wheat from Arizona to
move to international ports. Currently, APHIS, the State of Texas, and
the wheat industry are cooperating to move grain from quarantined areas
to ports for export.
Treatments
Several commenters said that no treatment for Karnal bunt should be
listed in the regulations until efficacy data has been compiled on
``real-life'' applications. One commenter expressed concern that the
regulations include a treatment for millfeed when, according to the
commenter, efficacy data for heat treatment for millfeed does not
exist. We agree with the commenters that approval of treatments should
be based on empirical data. The treatment options set forth in our
regulations are based on the latest scientific literature and efficacy
data available.
One commenter recommended that the sodium hypochlorite treatment
provided for in the regulations specify that the treatment solution
must remain in contact for 15 minutes with the surface to be
decontaminated. We are making no changes based on this comment. The
treatment set forth in the regulations requires that the equipment or
site not be washed down until 15 minutes have passed.
Several commenters stated that treatment of equipment with sodium
hypochlorite should not be included as an approved treatment, due to
the likelihood of corrosion of the equipment being disinfected. Because
this treatment may be corrosive to the equipment being disinfected, we
advise in the treatment instructions to wash the equipment thoroughly
after application in order to minimize corrosion. We are testing
alternative, less potentially corrosive, treatments for their
effectiveness on the pathogen. However, we have not found any less
corrosive, effective treatment to date.
The regulations regarding the treatment with sodium hypochlorite
call for ``a solution of sodium hypochlorite mixed with water applied
at the rate of 1 gallon of commercial chlorine bleach (5.2 percent
sodium hypochlorite) mixed with 2.5 gallons of water.'' One commenter
stated that it is possible that not all commercial chlorine bleaches
are 5.2 percent sodium hypochlorite and that, therefore, only the final
necessary treatment solution strength should be set forth. We agree
with the commenter that it is the final percentage of sodium
hypochlorite, after being mixed with water, that is important. We are
therefore specifying in this final rule that the treatment in question
requires wetting all surfaces to the point of runoff with a solution of
1.5 percent sodium hypochlorite. Because we believe that most users
will disinfect with household bleach with 5.2 percent sodium
hypochlorite, we are retaining in the treatment description, as an
example, the suggested mix of ``1 gallon of household chlorine bleach
(5.2 percent sodium hypochlorite) mixed with 2.5 gallons of water.''
One commenter recommended that a critical temperature be specified
for treatment with sodium hypochlorite or steam, and that it be
required that the surfaces treated be thoroughly wetted. The commenter
also stated that the fumigation treatment in Sec. 301.89-11(a)(4) be
revised by adding tarpaulin fumigation for small acreages. With regard
to both the sodium hypochlorite and steam treatments, the regulations
require the surfaces treated to be wetted thoroughly to the point of
runoff. With regard to the sodium hypochlorite treatment, the
temperature is not critical. However, we agree that a critical
temperature at the point of contact should be specified for treatment
with steam. Therefore, we are requiring in Sec. 301.89-13 of this final
rule that, for steam treatment, a critical temperature of 170 deg.F be
reached at the point of contact. With regard to tarpaulin fumigation,
we are making no changes based on the comment. We are still developing
a soil treatment with methyl bromide for the regulated area.
One commenter recommended as a treatment for used bags, sacks, and
containers soaking for 15 minutes in 30 percent chlorine bleach (5.2
percent hypochlorite). We have been unable to find any literature on
this treatment and are not endorsing it at this time. However, we do
consider effective, and are setting forth in Sec. 301.89-14 as an
approved treatment for bags, sacks, and containers used for infected
grain or seed fumigation with methyl bromide at the dosage of 15
pounds/1000 cubic feet for 96 hours.
One commenter stated that only storage bins that have held bunted
kernels and only combines and other equipment and means of conveyance
found to be infested with bunted kernels should have to be sanitized.
We disagree with the commenter, due to the risk of the spread of Karnal
bunt by spores.
One commenter stated that efficacy data for treatment methods
applicable to custom harvest equipment has not been provided and,
therefore, that custom combines used in fields infected with Karnal
bunt should be prohibited from moving out of the quarantined area.
Several other commenters also recommended such a prohibition, due to
what the commenters described as the impossibility of ensuring that all
spores on custom combines have been destroyed by the currently approved
treatment. Several commenters recommended that the Department purchase
a number of combines to be used, then left, in the regulated area. We
are making no changes based on these comments. We have specified
procedures for cleaning and sanitizing
[[Page 52195]]
equipment such as combines and consider the treatment, when properly
monitored, to be effective.
Several commenters stated that, although the regulations allow for
several methods of disinfecting equipment with regard to Karnal bunt,
fumigation with methyl bromide is the only completely effective way to
sanitize a combine. We are making no changes based on these comments.
We have specified procedures for cleaning and sanitizing combines, and
believe that the treatment with sodium hypochlorite, when properly
monitored, to be effective.
Several commenters stated in general that available methods for
``sanitizing'' equipment for Karnal bunt are costly and not totally
effective. One commenter described the hot detergent solution treatment
as ``essentially worthless.'' The commenter also stated that the need
to moisten areas treated with methyl bromide in some cases makes such
treatment impractical, such as in the treatment of grain elevators and
grain augers. We are making no changes based on these comments. We set
forth treatment options based on the best information available from
scientists familiar with Karnal bunt control. Procedures were developed
to facilitate the application of treatments. However, we agree that not
all treatments are equally effective in all situations. Therefore, we
are adding language to Sec. 301.89-13 of this final rule to provide
that the treatment option chosen must be the one specified by an
inspector if that treatment is deemed most effective in a given
situation.
One commenter stated that treatment dosage of methyl bromide
specified in the regulations is greater than that allowed by the
Environmental Protection Agency. The commenter urged APHIS to request
the necessary waivers to allow the use of methyl bromide as a fumigant
for the duration of the quarantine. We have obtained the appropriate
exemptions and permits for all the chemicals and treatments used in the
Karnal bunt program.
Section 301.89-11(b) of the Karnal bunt regulations set forth as an
approved treatment for straw/stalks/seed heads for decorative purposes
fumigation with methyl bromide at the dosage of 15 pounds/1,000 cubic
feet for 96 hours. One commenter stated that APHIS' import regulations
for wheat diseases in 7 CFR 319.59 exempts from regulation ``straw
without heads that has been processed or manufactured.'' The commenter
stated that, for consistency and because no pest risk has been
identified with this material, the Karnal bunt regulations should be
revised to include this exemption. We consider the commenter's point a
valid one. Section 319.59 exempts from regulation straw, with or
without heads, that has been processed or manufactured for use indoors,
such as for decorative purposes, or for use as toys. In Sec. 301.89-14
of this final rule, we provide that straw need not be treated for
movement outside the regulated area if it has been processed or
manufactured prior to movement, and is intended for use indoors.
Another commenter recommended that the dosage of methyl bromide be 5
pounds/1,000 cubic feet, rather than 15 pounds. We have no data
indicating that 5 pounds is an effective dosage and are making no
changes based on this comment.
One commenter recommended that equipment moved from a regulated
area be allowed to do so only under limited permit, rather than under a
certificate. Another commenter stated that, because of the difficulty
in assuring effective decontamination of conveyances carrying infected
articles, movement of such conveyances from quarantined areas should be
prohibited. We are making no changes based on this comment. We have
developed specific procedures for cleaning and sanitizing equipment and
conveyances, and believe that, when properly monitored, the treatments
are effective.
Several commenters recommended that all requirements for the
sanitization of farm equipment, conveyances, and grain elevators be
removed from the regulations. Another commenter recommended that
equipment coming from quarantined fields be required to be cleaned but
not sanitized. One commenter recommended that only those articles that
have come in contact with wheat or soil that has tested positive for
Karnal bunt be required to be sanitized. One commenter stated that it
was unrealistic and unachievable to restrict the movement of any
equipment or materials that come into contact with the soil on
contaminated fields. One commenter questioned the requirement to wash
soil from equipment in light of what he perceived as the greater risk
presented by windborne teliospores. Several commenters stated that, due
to what the commenters considered the impossibility of the eradication
of Karnal bunt, equipment moving within a quarantined area from a
contaminated field should be required to be cleaned free of soil, but
not be required to be sanitized. We acknowledge that the possibility of
the windborne spread of teliospores within the regulated area can
counteract the beneficial effects of sanitizing equipment. Because of
the potential windborne spread of Karnal bunt, and also because of the
possibility that equipment and means of conveyance may have been moved
from infected fields prior to the initial detection of Karnal bunt, we
are removing cleaning and sanitization requirements for movement within
the regulated area, except for movement from fields that test positive
for Karnal bunt during the 1996-97 crop season. Equipment moving
outside the regulated area must still be cleaned and sanitized prior to
movement. Additionally, we are still requiring the cleaning and
sanitization of contaminated elevators, so that grain testing negative
that is moving into the elevator remains uncontaminated.
Several commenters recommended that custom harvesting equipment be
prohibited from movement from a quarantined area, or, at the least,
that an effective monitoring program be implemented to assure that only
properly certified equipment leaves the quarantined area. We agree with
the commenter that the movement of custom harvesting equipment must be
closely monitored, and we have developed a system to monitor the
sanitization and movement of equipment from the regulated area.
In Sec. 301.89-11 of the regulations (Sec. 301.89-13 of the August
2, 1996, proposed rule), paragraph (a)(2) lists as an approved
treatment ``applying steam to all surfaces to the point of runoff.''
One commenter stated that the effectiveness of this treatment would be
doubtful, because the regulations set forth no requirement for the
``removal of material'' or for a minimum surface temperature. We
disagree that the regulations do not require cleaning. Section 301.89-
11 of the regulations (301.89-13 of this final rule) requires cleaning
by removing all soil and plant debris, followed by disinfection with
one of the required treatments.
In Sec. 301.89-11 of the regulations (Sec. 301.89-13 of the
proposed rule), paragraph (a)(3) lists as an approved treatment
``cleaning with a solution of hot water and detergent, under high
pressure (at least 30 pounds per square inch), at a minimum temperature
of 180 deg.F.'' One commenter stated that 30 pounds per square inch is
not considered high pressure and that 300 pounds per square inch would
be more appropriate. The commenter also expressed reservations about
the effectiveness of the treatment without the use of a fungicide. We
consider the treatment to be effective when used and monitored
appropriately. However, in order to avoid confusion as to the meaning
of ``high pressure,'' we are specifying only that the cleaning
[[Page 52196]]
solution must be applied with pressure of at least 30 pounds per square
inch.
One commenter recommended that requirements for the sanitization of
equipment be made gradually less stringent over the 5-year period
following the establishment of a quarantine. In our August 2, 1996,
proposed rule, we proposed to make less stringent the cleaning and
sanitization requirements within regulated areas, and to require
cleaning and sanitization of equipment only when moving from a
regulated area. In this final rule, we are requiring cleaning and
sanitization of equipment only when moving from a regulated area, and
in those cases where equipment is moved from a field that tests
positive for Karnal bunt during the 1996-1997 crop season. As we obtain
more data, we will consider other modifications to the sanitization
requirements.
Recommended Regulatory Actions
One commenter stated that allowing a Karnal bunt host crop to be
mature and harvested from a field known to be infested with Karnal bunt
teliospores or from a field planted with seed infected with Karnal bunt
allows for the possibility of teliospores being produced in the
resulting crop that would re-infest the soil in the field and
potentially be blown to other fields. This commenter and several other
commenters recommended that crops from infested fields be destroyed. We
are making no changes based on these comments. Due to currently
available survey techniques, we cannot determine whether a field is
infested until the crop is sampled and tested at harvest. In this final
rule, we are prohibiting the planting for the 1996-97 crop season of
host crops in fields that are known to be infested.
One commenter stated that once wheat shown to be infected is
destroyed in the field, the field should be burned and plowed to
destroy the spores. Then, the field should immediately undergo a soil
test for the presence of live spores. If no live spores are found, the
field should be considered clean and no further action should be
necessary. We are making no changes based on this comment. There are
scientific reports indicating that teliospores are carried on wind
currents caused by burning, and that the eradicative measure may
actually promote the spread of Karnal bunt. Also, we do not have an
effective methodology for testing soil at this time.
One commenter stated that the regulations should not allow the
burning of sacks, bags, and containers used for infected grain or seed
as a treatment option, due to the possibility of teliospores being
spread by the burning. As discussed above, we agree that burning is not
an appropriate treatment measure, and such an option is not set forth
in the regulations.
Several commenters stated that the ideal eradication scenario would
be to prohibit host crop production in the regulated area for a minimum
of 5 years. We are making no changes based on this comment. Although we
agree that the prohibition suggested by the commenter would be an
effective eradication technique, we believe there are other effective
measures that are less disruptive to farmers and the wheat industry
within the regulated area.
One commenter requested that, in order to restore the integrity of
grain produced in Arizona, APHIS assure the domestic industry and
international markets that the 1996 Arizona wheat crop would be
thoroughly tested prior to shipment. Several commenters recommended
that no preharvest testing be done, except for the most suspicious
fields. We consider adequate testing integral to the Karnal bunt
program. In 1996, all grain in the Karnal bunt program areas was tested
twice prior to movement. In 1997, under Sec. 301.89-6 of this final
rule, all grain in regulated areas must again test negative twice
before being moved from a regulated area, and one of these tests must
occur at the means of conveyance or storage facility immediately prior
to movement. We consider it necessary to test all grain moving from a
regulated area, because some fields that will be planted with wheat in
the 1996-97 crop season were not tested in 1996.
One commenter recommended that, due to the possibility of spillage,
open trucks or trailers transporting infected grain, even those covered
with a tarpaulin, be prohibited from leaving a quarantined area. We are
making no changes based on this comment. As noted, only grain that has
tested negative for Karnal bunt twice is eligible for movement out of
the regulated area. Additionally, the provisions of Sec. 301.89-6 this
final rule regarding movement from the regulated area provide that an
article to be moved under limited permit must be moved to a specified
destination for specified handling, utilization, or processing. In the
case of grain from where infested fields may occur, this means movement
only to approved mills under specific sanitation and safeguard
conditions.
One commenter objected to the provision in Sec. 301.89-5(c) that
states that an inspector shall issue blank certificates and limited
permits to a person operating under a compliance agreement. The
commenter requested that such documents be issued only by Federal or
approved State plant regulatory officials. We are making no changes
based on this comment. APHIS and State cooperators do not have the
resources to be present when each shipment or regulated article is
moved. However, the compliance of persons operating under compliance
agreement is monitored through inspections of facilities and equipment,
observation of procedures, and review and accounting of documents.
Calculation of Spore Prevalence
One commenter stated that APHIS is incorrect in concluding that the
detection of one spore in a railcar sample represents the presence of
close to 2 million spores in the railcar. The commenter stated that
subsequent tests of the railcar sometimes detect no further spores. Our
wheat testing program is basic to determining the actions appropriate
to controlling the spread of the Karnal bunt pathogen. We view the
detection of Karnal bunt teliospores in a sample from a qualitative,
not a quantitative, standpoint. We recognize that spores may not be
evenly distributed in a railcar. Nonetheless, we consider the detection
of teliospores as an adequate method to determine whether there is a
risk of spread of Karnal bunt.
Management of Karnal Bunt
Several commenters recommended that an eradication program be
replaced with a management program to potentially include the
following: (1) Planting clean, fungicide-treated seed; (2) requiring
crop rotations that include non-host crops; (3) using a later planting
date to force crop heading in central Arizona into a drier period of
the winter; (4) applying foliar fungicides on seed fields if conditions
indicate a risk of Karnal bunt infection; (5) implementing post-harvest
testing of seed to detect field infections of Karnal bunt; and (6)
using varieties of grains resistant to Karnal bunt. At this time, we
will continue to contain and control this disease to attain our goals
of (1) protecting other wheat producing areas of the United States, (2)
protecting and maintaining export markets, and (3) providing as many
options as possible to wheat producers within the impacted areas.
However, we consider the recommendations of the commenter good
management techniques. We are requiring in this final rule the use of
fungicide-treated seed for planting if the seed originated in a
regulated area and post-harvest testing. We are also examining the
feasibility of foliar
[[Page 52197]]
fungicides and are exploring the use of more resistant varieties of
wheat.
One commenter stated that if widely scattered areas in the United
States are found to have incidental Karnal bunt spores, such areas may
need to be put under ``observation,'' ``investigation,'' or
``restriction,'' but that ``quarantine'' may be counterproductive.
APHIS is currently conducting activities to control and contain the
disease within the regulated area. In addition, we are conducting a
national survey to determine if the disease exists in other portions of
the United States. If we find Karnal bunt in additional areas, we will
review the available data and take the most appropriate actions
consistent with our goals to protect other wheat growing areas, protect
export markets, and provide as many options as possible to growers and
industry impacted by our actions.
Non-Host Crops
One commenter stated that the small amount of soil present on
lettuce, cabbage, and onions poses a minimal threat of spreading spores
to other fields. Several commenters opposed the quarantining of crops
other than wheat, rye, and triticale. Several commenters stated that
the production of non-host crops such as root crops, onions, and
ornamentals should not be regulated merely because of the possibility
of the movement of soil or soil residues. The commenter stated that the
production of these crops poses a negligible risk of spreading Karnal
bunt. Another commenter recommended that standards for ``free from
soil'' be developed for the unrestricted movement of low risk crops
from quarantine areas. We are making no changes based on these
comments. We consider the risk of the spread of Karnal bunt through
soil to be sufficient to require cleaning of non-host crops prior to
movement outside the regulated area, or, alternatively, to require
movement under limited permit to facilities that will remove the soil
from the crops. Because cleaning root crops and other commodities is a
normal practice prior to sale, we do not believe that handling and
disposal of the soil in an appropriate manner will cause undue burden.
One commenter expressed concern that the sanitization treatments
provided will in most cases damage the fruit or vegetable crop beyond
marketability. We are making no changes based on this comment. Under
the regulations, fruits and vegetables need only to be free of soil.
Typically, fruits and vegetables are cleaned at harvest or at a packing
facility. There should be no additional damage as a result of the
requirement to remove soil from root crops and other vegetables and
fruit.
One commenter stated that the regulations should state that soil
associated with certain commodities (i.e., nursery stock, turf, etc.)
from a positive field in which a host crop has been grown, may not be
moved from that field unless it has been treated, tested, and found to
be negative. However, the commenter recommended that other types of
soil, such as soil attached to fruits or vegetables growing on top of
the ground and soil adhering to equipment, boxes, bags, etc, as a
result of their being set on the ground should not be regulated. We are
making no changes based on this comment. We consider the risk
associated with soil from a quarantined area merits regulation and
appropriate mitigative measures.
One commenter stated that in the case of New Mexico, where the
commenter said growers plowed down all known wheat acreage planted with
contaminated seed, and no Karnal bunt was detected on mature wheat,
establishing requirements to prevent the movement of soil and plant
debris on equipment and vegetable crops is excessive. We are making no
changes based on this comment. We consider a risk to exist with the
movement of soil on equipment and vegetable crops out of the regulated
area.
Calculation of Risk
One commenter stated that the Department should conduct a risk
analysis on each regulated article to determine if the risk is
``significant,'' and regulate only those articles posing a significant
risk. Several commenters said the Department's analysis of the risk of
a Karnal bunt outbreak from untreated millfeed showed the risk to be
negligible. One commenter said that the Department had stated that the
chance of Karnal bunt spreading from a quarantined area through Karnal-
bunt-negative millfeed was approximately 1 in 5,556 years, that the
Department considers this a ``moderate'' rather than a ``significant''
risk, and, therefore, that millfeed should not be a regulated article.
We are making no changes based on this comment. APHIS' estimate that
one outbreak might occur every 5,556 years was specific to the
situation where grain is shipped from anywhere in the quarantine area
to a mill outside the quarantine area and the millfeed is not treated.
This scenario was one of 17 scenarios presented by APHIS in formal risk
assessments on Karnal bunt. According to APHIS' current guidelines,
this constitutes a ``medium likelihood of spread'' (as opposed to a
moderate risk). The estimate of 5,556 years--and estimates for the
likelihood of an event in general--do not constitute a measure of
``risk''; 5,556 years was APHIS' estimate for the likelihood that
Karnal bunt would spread under these conditions. By definition,
estimates of the risk incorporate both the likelihood of an event (in
this case, spread of Karnal bunt) and the severity of the consequences
should Karnal bunt spread (e.g., economic and environmental impacts).
When a decision is made about what is an acceptable level of risk, both
the likelihood of an event (e.g., spread of Karnal bunt once every
5,556 years as a result of this particular type of shipment) and the
severity of the consequences (e.g., loss of export markets for United
States wheat) must be considered. The risk of each type of proposed
action must then be considered along with (e.g., added to) the risk
posed by other proposed or planned actions. The risk posed by these
shipments was determined to present a level of risk that was
unacceptable.
One commenter stated that the potential establishment of Karnal
bunt in an area outside the infested area from wheat grain intended for
milling for human consumption or processing for animal consumption was
judged by APHIS and the University of California to be remote--i.e., in
the order of magnitude of 1 in 1 million to 1 in 5 million. We believe
it is misleading to simplify the results of the analyses cited. The
estimate made by the University of California (UC) was compared with
the analogous estimate made by APHIS (i.e., Scenario No. 2C, Table 4a,
USDA, May 28, 1996). The methodology used by UC and APHIS were similar
in some respects but significantly different in other respects. Most
notably, APHIS performed a probabilistic risk assessment with a
probabilistic result (i.e., the estimate provided by the assessment was
a probabilistic range of values for the likelihood of spread). Because
the UC assessment was not a probabilistic assessment, only a single
number was reported (i.e., the spread of Karnal bunt once every 1.05
million years) and the scientific uncertainty about the biology and
movement of Karnal bunt was not considered. APHIS' assessment accounted
for the uncertainty regarding the biology of Karnal bunt. The estimate
used by APHIS to make decisions regarding regulation for this type of
shipment was, and continues to be, once
[[Page 52198]]
every 2,119 years (the 95th percentile of the estimated likelihood of
spread). Because the UC and APHIS methodologies were different, the
results could not be compared directly. However, UC and APHIS
essentially reached the same conclusion using different means, and
APHIS has not changed its estimate for the likelihood of spread.
One commenter recommended that APHIS conduct an evaluation of the
risk posed by Karnal bunt to the U.S. wheat industry and its
international markets. APHIS completed a risk analysis in 1991 that
addresses the consequences of the establishment of Karnal bunt.
Information regarding the analysis can be obtained from the person
listed in this final rule under FOR FURTHER INFORMATION CONTACT.
Definitions
One commenter stated that the definition of soil in Sec. 301.89-1
should be consistent with the definition established in the 1994
``North American Plant Protection Organization Position Paper on Soil
Movement.'' In that paper, soil is defined to mean ``the loose surface
material of the earth in which plants grow, in most cases consisting of
disintegrated rock with an admixture of organic material.'' We agree
with the commenter and have revised the definition of soil in this
final rule.
One commenter stated that Sec. 301.89-1, ``Definitions,'' defines
the terms farm tools, mechanized cultivating and mechanized harvesting
equipment, movement, soil, and soil moving equipment in their generic
sense, i.e., without reference to the connection they might have to
host crops. The commenter stated that by using such definitions, the
terms become all inclusive, even though, according to the commenter,
equipment such as harvesting equipment specific to commodities other
than wheat pose little risk of bearing spores of Karnal bunt. The
commenter recommended that the definitions be revised to make such a
connection to host crops, or, alternatively, that the term ``used''
that modifies certain regulated equipment in Sec. 301.89-2 be tied to
the risk associated with host crops for Karnal bunt. We are making no
changes based on this comment. We consider there to be a risk that the
pathogen will be moved with soil adhering to farm equipment and tools.
We consider cleaning and sanitization of these articles to be necessary
prior to movement from the regulated area, and prior to movement from
fields that test positive for Karnal bunt during the 1996-97 crop
season.
Scientific Resources
Several commenters stated that, in establishing the Karnal bunt
regulations, APHIS did not sufficiently enlist the expertise of
specialized scientific personnel. One commenter recommended that a
representative scientific panel be appointed to advise the Department
on modification of the quarantined areas. We disagree with the
commenters' contention. In developing program procedures, the
Department has solicited input from all interested parties. In
addition, APHIS has requested that informally structured groups such as
the Karnal bunt Science Panel meet to review and clarify technical
issues. Also, APHIS is exploring the possibility of establishing a
formal Karnal bunt advisory committee.
Regulated Areas
Section 301.89-3(c) provides that the Administrator may include
noninfected acreage within a regulated area due to its proximity to an
infestation or inseparability from the infected locality for regulatory
purposes. One commenter stated in general that this provision gives the
Administrator unnecessarily broad powers, and in particular that the
maximum regulated area in New Mexico should be those fields previously
planted with contaminated wheat seed. We disagree. Due to the movement
of equipment, the potential natural movement of the causal agent by
wind, and incomplete information on seed distribution for planting, we
consider the regulation of larger areas appropriate until additional
survey information is available.
Several commenters stated that areas such as Yuma County, AZ,
should not be quarantined. One of these commenters stated that natural
conditions in that area do not favor the establishment of Karnal bunt.
Several commenters stated that, as of the date the comments were
written, extensive testing in Yuma County had shown no Karnal bunt
infestation. Several commenters questioned why Arizona was the only
State to be quarantined in its entirety for Karnal bunt. One commenter
requested that the quarantine of Hudspeth County in Texas be reduced to
``more accurately reflect the affected areas.'' APHIS has revised the
quarantine boundaries in Arizona, California, New Mexico, and Texas,
including Hudspeth County, to include only those areas that contain
wheat fields that are associated with contaminated wheat seed or that
have tested positive. The Yuma area will remain within the regulated
area because it contains fields that tested positive during the
preharvest survey.
Several commenters stated that the same quarantine restrictions
have not been applied to areas with similar Karnal bunt conditions in
different States, requested that the specific scientific standards for
quarantine be publicly stated and applied equally, and that an
explanation be provided of why certain areas where Karnal bunt has been
determined to exist or that are suspect for the existence of Karnal
bunt have not been quarantined. At any indication of Karnal bunt, APHIS
and State cooperators respond immediately to identify potential
infestations. APHIS has traced contaminated seed to several locations
outside the regulated areas. In some cases, the seed had not been
planted but was still in storage. In those cases, the seed was
destroyed and the facilities were cleaned and sanitized. Contaminated
seed was traced to several small research plots, where the fields were
plowed down and fumigated. In some instances, despite extensive testing
and traceback efforts, we have not been able to confirm that
contaminated seed was either distributed or planted in the area in
question. We are continuing additional monitoring activities in those
areas. We consider such measures sufficient to ensure that Karnal bunt
is eliminated from the site without the unnecessary imposition of a
geographical quarantine.
Several commenters recommended a reduction or modification of the
quarantined area in California. According to the commenters, as of the
date the comment was written, no samples of grain produced in the
Imperial Valley of Imperial County, CA, had been proven to have Karnal
bunt. The commenters recommended that the Imperial Valley be removed
from the list of quarantined areas (with the possible exception of
those fields known to be planted with infected seed). One commenter
recommended that the current quarantine in Imperial County be replaced
with a program of wheat seed inspections, fungicidal treatment of wheat
seed, testing of outgoing shipments of wheat, and preharvest sampling.
One commenter recommended that those townships in Imperial County where
Karnal bunt has been found to be present be monitored during the coming
year. The commenter stated that a formal quarantine was unnecessary
because Karnal bunt can be dealt with in crop production and in
marketing in the same fashion as with other smut and bunt diseases that
occur in California. We disagree with the commenters that the Imperial
Valley should be released from regulation. This
[[Page 52199]]
area received seed that was contaminated with Karnal bunt. In addition,
composite samples taken from grain originating in the Imperial Valley
have tested positive. However, we acknowledge that no individual field
in the Imperial Valley has tested positive and are, therefore,
categorizing the Imperial Valley as a surveillance area in this final
rule. (Surveillance areas are discussed in more detail in this
SUPPLEMENTARY INFORMATION under the heading ``Regulated Areas.'')
One commenter recommended that APHIS quarantine wheat lots, rather
than quarantine States or counties according to geographical
boundaries. We are making no changes based on this comment. However, in
APHIS' current program, eligibility for movement is determined by test
results of grain from either individual fields or means of conveyance.
One commenter recommended that the Department take responsibility
for the movement of regulated articles out of the regulated area, and
that States be responsible for movement within regulated areas. We are
making no changes based on this comment. APHIS and State cooperators
work together to provide an integrated program, because movement
outside the regulated area is dependent on program activities conducted
within the regulated area.
One commenter recommended that growing areas be removed from
regulation if they show less than 1 percent positive results in the
pre-harvest survey. The commenter also recommended that regulated areas
be delineated using geographic boundaries, i.e., highways, roads, and
rivers, rather than county boundaries. We do not agree that regulation
of an area should be dependent on whether Karnal bunt is detected in
some specified percentage of fields tested. However, in this final
rule, based on 1996 survey data, we have modified the regulations by
categorizing areas based on the presence or not of fields that tested
positive for the pathogen. The areas are regulated based on their
relative risks. Areas with positive fields are of greater risk because
the pathogen has been shown to exist and may be spread locally by wind
or the movement of equipment. This would occur independently of
whatever percentage of the fields are positive. We are using boundaries
other than county lines to describe the regulated areas.
Several commenters stated that, in those areas where only several
fields have been found to be infected with Karnal bunt, only those
fields testing positive should be quarantined, not the entire area.
Another commenter recommended that, using traceback survey and pre-
harvest sampling results, only those areas where an infestation has
been found should be subject to quarantine. One commenter stated that
negative preharvest testing of seed produced in a quarantined area
should be grounds for allowing that seed to move from the quarantined
area. One commenter recommended that quarantined areas be limited to
those wheat-growing areas where Karnal bunt is suspected and projected
by APHIS. We agree with the commenters that, based on survey data,
certain areas present a greater risk than others, and, in this final
rule, we have created criteria for two categories of areas within the
regulated area: (1) Restricted areas which include fields testing
positive, and (2) surveillance areas where no fields testing positive
are located. We discuss these areas in greater detail in this
Supplementary Information under the heading ``Regulated Areas.'' Grain
moving from restricted areas will continue to move under limited permit
with safeguard conditions. Grain from surveillance areas may move under
certificate without restriction.
Services of Inspectors
Section 301.89-8 of the regulations sets out the procedures for
requesting the services of an inspector by persons requiring
certification or other services. Paragraph (a) of that section requires
that 48 hours notice be given to the inspector before the services are
needed. One commenter suggested that, instead of the mandated 48 hours
notice, provisions for assembly and inspection of regulated articles be
set through compliance agreements. We do not believe that specifics
concerning requirements for APHIS lead-time notification are
appropriate for a compliance agreement. However, we recognize the need
for a quicker response time during harvest, and, therefore, are
revising the regulations by reducing from 48 hours to 24 hours the time
required for notification prior to the provision of APHIS services.
Section 301.89-10 provides that the services of an inspector during
normal business hours will be furnished by APHIS without cost, but that
the user will be responsible for all costs and charges arising from
services provided outside of normal business hours. One commenter
stated that, during harvest season, ``normal business hours'' are
virtually around the clock, and that the Department should be
responsible for all costs and charges arising from inspection and other
services provided at any time. During the 1996 harvest, APHIS did not
charge for services conducted outside ``normal'' business hours. We
expect to continue this policy for most activities in the 1997 crop
season.
Import Requirements
Several commenters stated that the restrictions regarding produce
from Mexico because of Karnal bunt are less stringent than those
established by the domestic quarantine regulations, and inquired
whether the two sets of restrictions would be made consistent. We
disagree with the commenters' statement. Wheat products and soil from
Mexico are restricted entry into the United States to prevent the
introduction of insect pests and plant diseases such as Karnal bunt.
Analysis of Economic Impact
Several commenters stated that the Department has not published an
assessment of the economic impact of the Karnal bunt quarantine.
Another commenter stated that the long-term economic costs of
maintaining the current Karnal bunt quarantine would outweigh the
amount of foreign export business that
FR Doc. 96-25549 Karnal Bunt
might be temporarily lost if the
Karnal bunt regulations were removed. We are currently in the process
of assessing the economic impact of the Karnal bunt quarantine, and
will publish this assessment in the Federal Register upon its
completion.
Comment Period
One commenter stated that the 60-day comment period provided for
our interim rule establishing the Karnal bunt regulations allowed
insufficient time for interested parties to compile sufficient
information to comment. Although the comment period for the interim
rule establishing the regulations was initially to end on May 28, 1996,
that period was extended until September 3, 1996. We consider this
sufficient time for interested parties to have commented on the interim
rule.
Comments on Proposed Rule, Docket No. 96-016-10
Several commenters supported our August 2, 1996, proposal.
One commenter requested that APHIS explain the sound science upon
which it based each provision of the proposed rule. We acknowledge the
need to base regulatory actions on the latest scientific data
available. The provisions of the Karnal bunt regulations are based on a
combination of scientific data and recommendations of the Karnal bunt
Science Panel, APHIS' experience as a regulatory agency, and standard
regulatory procedures and systems that have proven effective in
previous
[[Page 52200]]
programs. Sound science, coupled with environmental considerations,
forms the basis for a risk-based, flexible regulatory system to
accomplish APHIS' goals to (1) protect other wheat-producing areas of
the United States, (2) protect and maintain export markets, and (3)
provide as many options as possible for wheat producers within the
impacted area.
One commenter disagreed with the statement in our proposed rule
that the purpose of the proposal was to relieve unnecessary restriction
on areas regulated because of Karnal bunt, while guarding against the
artificial spread of the disease. The commenter stated that the
proposal actually expands the restriction on movement. For example,
stated the commenter, where the regulations required the removal of
soil from equipment that entered a field that is positive for Karnal
bunt or that had been planted with contaminated seed, the proposed rule
expands the cleaning requirement to any field known to be planted in
the past 5 years with seed contaminated with Karnal bunt, and fields
adjacent to fields in which preharvest samples tested positive. We
agree with the commenter that, in many cases, such cleaning is
unnecessary within the regulated area. In this final rule, we have
modified the cleaning and sanitization requirements to require these
measures only when equipment or conveyances are moved out of the
regulated area, or are moved from fields that tested positive for
Karnal bunt during the 1996-97 crop season.
Several commenters stated that APHIS should publish in the
regulations the terms of compliance agreements under which regulated
articles may be moved out of regulated areas. In general, the terms of
compliance agreements follow the provisions and treatments set forth in
the regulations. Additional information is often provided to the
regulated establishment concerning recordkeeping, handling of limited
permits and certificates, local contacts, and any special instructions
specific to the operations of the establishment. When the interim rule
establishing the Karnal bunt regulations was promulgated, its
provisions were general and flexible. This was because we were
regulating a new outbreak of a disease with which we had minimal past
experience. In this final rule, we are publishing a table of conditions
under which areas of differing risk levels will be regulated, to inform
growers and other members of the industry of how they will be impacted.
Compliance agreements will be based on these regulatory conditions.
One commenter stated that, where possible, the use of compliance
agreements for such actions as the movement of grain, disposition of
millfeed, and movement of equipment should be avoided. The commenter
said that being required to sign a compliance agreement in order to
handle a product discourages potential buyers from handling the product
in question. We consider the use of compliance agreements to be
beneficial to both APHIS and the person operating under the compliance
agreement. The use of compliance agreements allows APHIS to better use
its resources, and allows the person to handle and move regulated
articles without the constant presence of an inspector. We believe that
the necessity for on-site monitoring during operations and at movement
would be more discouraging to buyers and handlers.
Risk Categories for Areas and Fields
In Sec. 301.89-3(f) of our proposed rule, we proposed criteria by
which fields in regulated areas would be classified into various risk
class levels. We proposed that the Administrator would classify fields
in regulated areas according to the following categories, and would
notify the owner or person in possession of the field of the field's
classification:
1. Fields in which preharvest samples tested positive for Karnal
bunt;
2. Fields known to be planted in the past 5 years with seed
contaminated with Karnal bunt;
3. Fields adjacent to fields in which preharvest samples tested
positive;
4. Fields associated only through ownership, management, the
movement of equipment, or proximity within a distinct definable area
with fields in which preharvest samples tested positive; and
5. Fields within a regulated area that are not fields described in
``2'' and ``4,'' and that are part of a distinct definable area that
includes no fields in which preharvest samples tested positive.
A number of commenters commented on these proposed categories. Some
of the commenters addressed the proposed categories in general; other
commenters addressed individual categories. After reviewing the
recommendations made by the commenters, we believe that we should
revise our categorization of risk areas to simplify them and to make it
easier for the owner of specific fields to know the status of those
fields. For purposes of clarity, in the following paragraphs we will
first explain what this revised system of categorization will consist
of, then we will discuss comments on the system of categorization that
we set forth in our proposed rule. We believe conducting the discussion
of the comments in this way will allow us to respond to the comments in
the context of the regulatory scheme that we are adopting in this final
rule.
Regulated Areas
In Sec. 301.89-3 of this final rule, we set forth the criteria for
designating an area as a regulated area. These criteria are the same as
that set forth in the proposal. Under these criteria, the Administrator
will regulate each State or portion of a State that is infected. In
Sec. 301.89-1 of both the proposal and this final rule, infestation
(infected) is defined as the ``presence of Karnal bunt, or any stage of
development of the fungus Tilletia indica (Mitra) Mundkur, or the
existence of circumstances that make it reasonable to believe that
Karnal bunt is present.'' In Sec. 301.89-2 of this final rule, we set
forth a list of regulated areas.
Restricted Areas and Surveillance Areas
In this final rule, we then divide each regulated area into two
sub-categories. In each regulated area, all or a portion of that
regulated area will be designated as either a ``restricted area'' or a
``surveillance area.'' In Sec. 301.89-1 of this final rule, we define a
restricted area as a ``distinct definable commercial wheat production
area that includes at least one field that tested positive for Karnal
bunt.'' A distinct definable area is defined as ``a commercial wheat
production area of contiguous fields that is separated from other wheat
production areas by desert, mountains, or other nonagricultural terrain
as determined by an inspector, or, in the case of restricted areas, as
determined by an inspector based on survey results, including the
number of positive fields and the relative spore count of the fields
within the area.'' In Sec. 301.89-1, we define surveillance area as a
``distinct definable commercial wheat production area in which no
fields have tested positive for Karnal bunt, but in which movement of
contaminated seed has occurred.'' In Sec. 301.89-2 of this final rule,
we set forth a list of each restricted area and each surveillance area.
There are several practical differences between being designated a
restricted area and being designated a surveillance area. First, grain
from a restricted area that tests negative for Karnal bunt may move
under limited permit from the regulated area to designated facilities
under safeguard and sanitation conditions; grain from a surveillance
area that tests negative for Karnal bunt may move under certificate to
any destination without restriction.
[[Page 52201]]
Additionally, under Sec. 301.89-13(c) of this final rule, millfeed from
grain produced in a restricted area is required to be treated, whereas
millfeed from grain produced in a surveillance area is not required to
be treated. However, as explained below, only certain types of fields
will be permitted to be planted with host crops; therefore only those
fields will be capable of producing grain to be sent for milling.
In this final rule, each restricted area and each surveillance area
is further divided into individual fields within those areas, as
described in the following paragraph. Each field in a restricted area
will fall into one of three categories. Each field in a surveillance
area will fall into one of two categories.
In a restricted area, each field will be designated either as (1) a
field in which preharvest samples tested positive; (2) a field planted
with known contaminated seed in 1995; or (3) any other field within the
restricted area. In a surveillance area, each field will be designated
either as (1) a field planted with known contaminated seed in 1995; or
(2) any other field in the surveillance area.
There is a practical effect to being designated a certain risk
level of field. In a restricted area, in fields in which preharvest
samples tested positive, no Karnal bunt host crops may be planted in
the 1996-97 crop season. This same prohibition applies to fields in
both restricted areas and surveillance areas which were planted with
known contaminated seed in 1995. Also, as noted above, millfeed from
grain from a field in the ``any other field'' category in a restricted
area must be treated; millfeed from a surveillance area need not be
treated.
In order to help clarify our system of categorization, we have set
forth each category we are establishing in this final rule, and the
practical ramifications of being classified in that category, in a
table in this final rule, as follows:
Conditions for Wheat Production and Utilization in a Regulated Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Definition Host planting Seed Decontamination Millfeed Survey Disposition of grain
--------------------------------------------------------------------------------------------------------------------------------------------------------
Restricted
area
Category:
1............ Fields in which No host planting Not applicable... Equipment movement Not applicable... Not applicable... Not applicable.
preharvest in 1996-97 crop outside regulated
samples tested season. area: cleaned and
positive. sanitized. Movement
within: no
restrictions.
2............ Fields planted No host planting Not applicable... Equipment movement Not applicable... Not applicable... Not applicable.
with known in 1996-97 crop outside regulated
contaminated season. area: cleaned and
seed in 1995. sanitized. Movement
within: no
restrictions.
3............ All other fields No restrictions.. Tested and, if Equipment movement Required, unless Double-tested: Movement of grain
within from regulated outside regulated destination Sampled in field testing positive
restricted area. area, treated area: cleaned and State controls at harvest; restricted; grain
prior to sanitized. Movement disposition/ composite sample testing negative
planting. within: no movement. prior to may move under
restrictions. movement. limited permit to
designated
facilities under
safeguard and
sanitation
conditions.
Surveillance
area
4............ Fields planted No host planting Not applicable... Equipment movement Not applicable... Not applicable... Not applicable.
with known in 1996-97 crop outside regulated
contaminated season. area: cleaned and
seed in 1995. sanitized. Movement
within: no
restrictions.
5............ All other fields No restrictions.. Tested and, if Equipment movement Not required..... Double-tested: Movement of grain
located in from regulated outside regulated Sampled in field testing positive
definable area area, treated area: cleaned and at harvest; restricted; grain
where no fields prior to sanitized. Movement composite sample testing negative
in risk level 1 planting. within: no prior to may move under
are located. restrictions. movement. certificate.
Safeguard and
sanitation of
railcars not
required.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 52202]]
Comments On Proposed Risk Categories
We will now discuss the comments that addressed the risk categories
we set forth in our proposal. We will first discuss those comments that
addressed our proposed system of categorization in general. We will
then discuss those comments that addressed specific categories set
forth in our proposal.
Comments on Proposed Categorization in General
The definitions in proposed Sec. 301.89-1 include a definition of
distinct definable area. This definition reads ``a commercial wheat
production area of contiguous fields that is separated from other wheat
production areas by desert, mountains, or other nonagricultural terrain
as determined by an inspector.'' One commenter stated that this
definition does not accurately describe wheat production in the
proposed regulated area of New Mexico, where less than 4 percent of the
agricultural acreage is planted in wheat, and the fields are small and
randomly dispersed. We believe we can identify distinct definable areas
in New Mexico when appropriate. Under the criteria for classification
set forth in this final rule, all regulated portions of New Mexico will
at this time be classified as surveillance areas.
One commenter stated that although the proposed rule stated that
regulated areas would be classified according to specific risk
categories, such classifications were not included in the proposed
regulations. Another commenter requested that APHIS publish a map
showing the location of fields in Arizona and the level of risk
classification for those fields. Another commenter stated that the
regulations should explain how risk levels are determined. As noted
above, in this final rule, we have simplified the proposed rule by
categorizing areas into two types--restricted and surveillance, and we
describe the criteria for and the boundaries of each type of area. We
have identified the location of fields that have tested positive and
will notify growers in those areas. We are preparing maps and will
distribute them when they are completed.
One commenter stated that the criteria for the different risk
levels is broad and arbitrary, and that, consequently, lenders will not
be able to assess the risk a field presents. One commenter stated that
the proposed rule did not make clear what practical impact
classification of fields into different risk categories would have. As
noted, in this final rule, we have simplified the provisions that were
proposed by setting forth criteria for two categories of fields--
restricted and surveillance. We are also providing a table in the
regulations that outlines the effects of being classified as a
particular area.
One commenter inquired whether a process would be established by
which a field classification could be appealed. The commenter also
inquired whether the risk classification of a field would be subject to
change after initial classification. No appeal process has been
established. After initial classification, changes would occur only
when positive survey results indicate that it is appropriate.
Several commenters expressed concern that the ``regulated'' areas
in the proposed rule were identical to the ``quarantined'' areas in the
current regulations, and recommended that the regulated areas be
reduced. In this final rule, we are making certain changes to the
existing quarantined areas. Additionally, there are significant
differences between restricted areas as defined in this final rule, and
surveillance areas.
One commenter questioned whether the Department has the resources
to regulate the different field classifications, rather than simply on
an ``area'' level. We are confident we have sufficient resources to
enforce the regulations. Operationally, we consider the regulatory
scheme in this final rule to be simpler than that in our proposed rule.
One commenter inquired whether currently quarantined areas that do
not fit into one of the classifications described above would be
considered not to be quarantined. As noted above, in this final rule,
we are removing from regulation additional wheat growing areas that
have no association with contaminated seed, We believe the remaining
areas can be categorized.
Several commenters recommended that only four categories of fields
be established, as follows:
1. Fields in which 1996 preharvest samples tested positive;
2. Fields known positively to have been planted with contaminated
seed since 1995;
3. Fields in which 1996 preharvest samples tested negative; and
4. Fields outside the 1996 regulated area. We are not adopting the
commenter's recommended scheme, which we consider to require
regulations essentially the same as those in effect during the 1996
harvest. We believe that, based on survey data, we can relax
restrictions in the coming crop year in some areas, while we gather
more data on the extent of the infestation.
As part of this scheme of four categories, the commenters
recommended the following:
Host Planting: Prohibited for 1 year in categories ``1'' and ``2;''
unrestricted in categories ``3'' and ``4.''
Seed: No seed should be present in categories ``1'' and ``2;'' test
and treat in category ``3;'' recommend treatment in category ``4.''
Disposition of Grain: No grain should be present in categories
``1'' and ``2;'' unrestricted disposition from categories ``3'' and
``4.''
Decontamination: Decontaminate equipment with soil in categories
``1'' and ``2;'' decontaminate only equipment that came into contact
with contaminated wheat in categories ``3'' and ``4''
Millfeed Treatment: No requirements.
With regard to the restrictions and requirements recommended by the
commenters, we believe that due to the potential natural and artificial
movement of the Karnal bunt pathogen, areas that include fields that
test positive are a high risk, and that different levels of regulatory
activity within areas, not only fields, is appropriate.
One commenter recommended that the current quarantine be replaced
with a program of ``monitored grain exchange,'' to contain three key
elements:
1. Require that all seed, feed, and grain be twice tested negative
before leaving areas where there is a risk of contamination, and
require source labeling for all grain shipped from these areas.
2. Within the current quarantined area, classify zones according to
three levels of risk, as follows:
a. Zone 1: Bunted kernels have been confirmed. No grain may leave
area, except for use as feed. All grain exceeding a specified tolerance
is removed from distribution.
b. Zone 2: No contamination has been found, but a risk of
contamination exists. Allow grain to move to designated end-use sites,
such as research facilities, certain seed replication sites, and flour
mills.
c. Zone 3: No contamination has been found. Allow unlimited grain
movement once samples have been twice tested negative.
3. Establish a multi-level tolerance based on end use. As noted
above, we have modified the regulatory scheme we proposed. We have
included several elements similar to those suggested by the commenter,
including the testing twice of all grain, restricted movement of grain
from areas that tested positive or presented a risk
[[Page 52203]]
of contamination, and unrestricted movement from areas of minimal risk.
The provisions in Sec. 301.89-4 of the current regulations set
forth conditions for the movement of regulated articles from
quarantined areas. These provisions are similar to those set forth in
Sec. 301.89-5 of the proposed rule, ``Movement of regulated articles
from or within regulated areas.''
Comments on Specific Categories
We now discuss comments that addressed specific categories of
fields as set forth in our proposal.
1. Fields in Which Preharvest Samples Tested Positive for Karnal Bunt
One commenter specifically supported this risk classification.
Another commenter recommended that future plantings in this category be
limited for 5 years to crops that are not hosts of Karnal bunt. Another
commenter recommended that the regulations require that wheat be
planted no more often than every third year in a field testing positive
for Karnal bunt. During the 1996-97 crop season, we are prohibiting the
planting of host crops in fields that tested positive in the 1996
harvest testing. We will reassess this prohibition on an annual basis
after considering new survey and scientific information.
Several commenters stated that the proposed requirements for the
treatment of millfeed from wheat from fields of this category are
unnecessary, because fields that tested positive in 1996 would have no
wheat grown on them in 1997. To eliminate any confusion, we have
reworded the regulations to clarify that this applies only to fields
that test positive in the future. However, we expect to find additional
fields that test positive. Millfeed produced from grain originating
from such positive fields will require appropriate treatment and
handling.
One commenter stated that if a new field tested positive for Karnal
bunt in 1997, the grain would be heat treated, sent to a feedlot within
the quarantined area, or handled in some other fashion that would not
spread the disease, and there would be no millfeed. We are cooperating
with the industry and States to develop additional options for positive
grain, such as milling or export.
One commenter inquired how APHIS would classify a field that tested
positive during preharvest testing, then was harvested and tested
negative at harvest. In such a situation, the field would be classified
as positive for Karnal bunt.
Several commenters objected to the proposed requirement that
vegetable crops that are not moved to an approved processing facility
must be cleaned of all soil and plant debris prior to movement from
fields in this category, and also from fields in categories ``2'' and
``3,'' as described below. The commenters stated that fresh fruits and
vegetables are in a ``consumer market'' upon harvest and packaging, and
therefore present no risk of spreading Karnal bunt. Most fruit and
vegetables are cleaned prior to being sold. We are concerned with the
handling of the soil resulting from this cleaning when the fruits and
vegetables are moved outside the regulated area.
2. Fields Known to be Planted in the Past 5 Years With Seed
Contaminated With Karnal Bunt
One commenter stated that the 5-year period may be too long, based
on a report from India that, according to the commenter, indicated that
Karnal bunt spores can survive in the soil for only 27-45 months. One
commenter objected to having to disinfect equipment because seed known
to be contaminated was planted in 1994, if all lots of seed in 1995
tested negative. Several commenters recommended that this category
include only fields known to be planted with contaminated seed within
the last year. We agree that the issue of spore viability requires
further review, and are conducting such review. Due to the need for
such review, and the absence of historical records regarding many
fields, in this final rule, we have changed the description of fields
of this type to include only fields planted with contaminated seed in
1995. In addition, in the final rule, we are not requiring cleaning and
sanitization of equipment moving within the regulated area, except from
fields testing positive for Karnal bunt during the 1996-97 crop season.
One commenter recommended that future plantings in this category of
field be limited for 5 years to crops that are not hosts of Karnal
bunt. During the 1996-97 crop season, we are prohibiting the planting
of host crops in fields that were planted with contaminated seed in
1995. We will reassess this prohibition on an annual basis after
considering new survey and scientific information.
One commenter questioned the need to clean and disinfect equipment
moving out of the regulated area from fields of this category, stating
that wind erosion can relocate more spores in 12 hours than equipment
could carry in years. In order to protect other wheat growing areas of
the United States, we consider it necessary to require cleaning and
sanitization of equipment and conveyances moving out of a regulated
area. However, as discussed earlier in this document, we acknowledge
the role of wind in the local movement of the pathogen and have removed
the requirement for cleaning and sanitization for movement within the
regulated area, except from fields testing positive for Karnal bunt
during the 1996-97 crop season.
Several commenters recommended that future planting restrictions
for fields of this category be applied only if there is direct evidence
that the seed planted was from a contaminated source and the specific
location of the site where it was planted can be identified. We agree
with the commenters' recommendation and, as noted above, have redefined
this category as fields planted in 1995 with known contaminated seed.
This categorization will be applied only if there is direct evidence
that the seed planted was from a contaminated source and if the
specific location of the site where it was planted can be identified.
Several commenters recommended that no planting restrictions be
applied to fields in this category, and one commenter described this
category as unrealistic. The commenter stated that unless the seeds are
checked by DNA analysis and tested for germination, there is no
certainty that the spores are Karnal bunt. The commenter also stated
that the presence of a relatively small number of spores in soil may
not mean there is significant risk when moving wheat from the area. We
are making no changes based on these comments. The lots in question
that were planted in 1995 were determined to be contaminated by the
presence of bunted kernels, by standard microscopic diagnostic
techniques involving morphometric characteristics, and/or by DNA
analysis. We consider it necessary to prohibit planting of host crops
in fields where contaminated seed was planted. Planting of host crops
would allow multiplication and probable spread of the disease.
Several commenters stated that the requirement to clean soil and
plant debris from vegetables from this category of fields is excessive
and should be removed. We are making no changes based on these
comments. We consider it necessary to require that vegetable crops
moving outside the regulated area be cleaned of all soil and plant
debris prior to movement, or be moved under limited permit to
processing facilities for cleaning.
One commenter stated that if there is a prohibition against
planting in a field in which a preharvest sample has tested positive or
a field that has been planted within the last 5 years with
[[Page 52204]]
contaminated seed, it should also apply to such fields outside the
regulated area. If it does not, said the commenter, the scientific
basis for such a decision should be published. We consider our response
to the comment discussed earlier regarding varying restrictions on
different areas to be applicable here. As noted, APHIS has traced
contaminated seed to several locations outside the regulated areas. In
some cases, the seed had not been planted but was still in storage. In
those cases, the seed was destroyed and the facilities were cleaned and
sanitized. Contaminated seed was traced to several small research
plots, where the fields were plowed down and fumigated. In some
instances, despite extensive testing and traceback efforts, we have not
been able to confirm that contaminated seed was either distributed or
planted in the area in question. We are continuing additional
monitoring activities in those areas. We consider such measures
sufficient to ensure that Karnal bunt is eliminated from the site
without the unnecessary imposition of a geographic quarantine.
3. Fields Adjacent to Fields in Which Preharvest Samples Tested
Positive
Several commenters recommended that this category be deleted,
stating that no scientific justification exists for presuming that
Karnal bunt can be easily spread from field to field due only to
physical proximity. Alternatively, the commenters recommended that
``adjacent'' be defined, and not mean fields separated by main roads,
main canals, agricultural drains, and other large landmarks. Several
commenters opposed restrictions on movement from this category of
fields, as well as requirements for cleaning and disinfection and the
treatment of millfeed. The proposed category of fields referred to by
the commenters is not set forth in this final rule. All fields in an
area that includes a field that tests positive are now classified as
being part of a restricted area. There is a higher risk in these areas
that the pathogen is present due to windborne spread and movement of
equipment and means of conveyance prior to regulation.
4. Fields Associated Only Through Ownership, Management, the Movement
of Equipment, or Proximity Within a Distinct Definable Area With Fields
in Which Preharvest Samples Tested Positive
Several commenters recommended that this category be deleted,
because, according to the commenters, there is no evidence that Karnal
bunt has been spread among fields associated as described. The
commenters opposed the proposed requirement for the treating of
millfeed from fields of this category. One commenter stated that APHIS
should either state the scientific basis for regulating these fields,
or consider these fields outside the regulated area. Although this
category of fields is not specifically set forth in this final rule, we
consider our response to the previous comment applicable here.
One commenter recommended that this category should also include
fields that are possibly associated with contaminated seed, but for
which direct evidence is not available. The commenter cited the
situation where a specific field in which contaminated wheat was
planted cannot be identified because the grower did not keep records.
In such a case, said the commenter, all fields planted to the same
variety as the contaminated seed are suspect. The commenter stated
that, because of the elevated risk of fields in this category, farm
equipment, farm tools, and soil moving equipment should be required to
be cleaned and disinfected prior to movement from fields in this
category to locations outside the regulated area. In this final rule,
we have modified our decontamination requirements to require cleaning
and sanitization of farm equipment, tools, and soil-moving equipment
prior to movement out of the regulated area, and prior to movement from
fields testing positive for Karnal bunt during the 1996-97 growing
seasons.
One commenter stated that the cleaning and disinfection
requirements for fields in categories ``1,'' ``2,'' and ``3'' should
also apply to regulated articles from fields in categories ``4'' and
``5.'' The commenter stated that 1996 pre-harvest testing did not
detect the presence of Karnal bunt in all infected or contaminated
fields, that there were reported cases where positive post-harvest
testing followed negative pre-harvest testing, and that, because all
fields with a history of wheat production in years prior to the 1995-96
crop were not planted to wheat in 1995-96, there are no pre-harvest
test results from these fields to provide evidence of area freedom from
Karnal bunt. We agree with the commenter. This final rule requires that
equipment and means of conveyance moved out of any regulated area be
cleaned and sanitized. As noted above, however, we are not requiring
cleaning for movement within the regulated area, except from fields
testing positive for Karnal bunt during the 1996-97 crop season.
5. Fields Within a Regulated Area That are Not Fields Described in
``2'' and ``4,'' and That are Part of a Distinct Definable Area That
Includes No Fields in Which Preharvest Samples Tested Positive
One commenter supported the proposed provision that millfeed from
wheat from fields of this category need not be treated to be moved from
a regulated area. Several commenters recommended that fields meeting
this classification be removed from the regulated area. We are making
no changes based on these comments. We consider it necessary to
regulate these fields and areas because of the movement of contaminated
equipment and seed, composite samples that tested positive in the
areas, and the fact that many fields that were planted to wheat in
years prior have not been sampled.
Seed For Planting
One commenter stated that the requirements regarding planting seed
in Sec. 301.89-4 as proposed should make clear that seed to be planted
must first be sampled and tested negative for Karnal bunt, then be
treated with a fungicide. The regulations as proposed set forth the
fungicide requirement first, then the sampling and testing requirement.
We agree that the recommended change would clarify our intent and have
made the change in this final rule.
One commenter stated that it would be helpful to the wheat industry
if APHIS specified which fungicides are acceptable. We agree with the
commenter, and have added to Sec. 301.89-13 of this final rule the
provision that the treatment for seed must consist of either: (1) 6.8
fl. oz. of Carboxin thiram (10 percent + 10 percent, 0.91 + 0.91 lb.
ai./gal.) flowable liquid and 3 fluid ounces of pentachloronitrobenzene
(2.23 lb. ai./gal.) per 100 pounds of seed; or (2) 4.0 fluid ounces of
carboxin-thiram (1.67 + 1.67 lb. ai./gal.) flowable liquid and 3 fluid
ounces of pentachloronitrobenzene (2.23 lb. ai./gal.) per 100 pounds of
seed.
One commenter asked APHIS to specify whom the Agency would allow to
conduct the required sampling and testing. APHIS and State
representatives conduct the sampling and testing.
One commenter stated that the requirement in Sec. 301.89-4 for
sampling and negative testing of seed to be planted should apply only
to wheat seed originating within a regulated area. We disagree. We
consider it necessary to ensure that all seed planted in the regulated
area is free of Karnal bunt, and to be able to identify any sources of
[[Page 52205]]
contamination outside the regulated area.
One commenter recommended that no seed be planted within a
quarantined area unless it has been certified as having undergone the
necessary phytosanitary requirements, and has been treated with
antifungicides. We are making no changes based on this comment. In this
final rule, we require that all seed to be planted within a regulated
area be tested for the causal agent of Karnal bunt and be treated with
a fungicide.
Millfeed
Section 301.89-13 of the proposed rule set forth requirements for
approved treatments for regulated articles, including millfeed. Several
commenters stated that requirements for treatment of millfeed should
apply only to millfeed from wheat grown in fields that have tested
positive for Karnal bunt. APHIS is requiring millfeed to be treated if
from grain originating in restricted areas. There is a risk of movement
of the pathogen with wind or equipment and means of conveyance from
fields that test positive. Many fields that will be planted in wheat in
the 1996-97 crop season have not been tested.
One commenter requested that the requirement that millfeed from
quarantined areas be treated be reviewed, especially if it can be shown
that its final destination and disposition does not present a
significant risk for re-infection or disease spread to new areas. One
commenter stated that APHIS should continue its policy of allowing
States to govern millfeed movement, and should continue its policy of
not inspecting or quarantining flour mills. We agree that final
destination and disposition of millfeed is important in determining
risk. During the 1996 harvest, we allowed the destination State to
determine appropriate treatment and handling based on the intended use
within their State. Interstate movement was still monitored and treated
when appropriate. This final rule requires special treatment and
handling of millfeed only when the grain originates from distinct
definable areas that have fields that test positive. We are not
conducting detection surveys in flour mills.
Several commenters recommended that millfeed that results from the
milling of wheat from clean areas within the quarantined area and/or
wheat that has been tested and found free of teliospores should be
allowed to move freely in commerce, and that treatment of the millfeed
should be required only when teliospores have been detected. One
commenter stated that it appeared that millfeed from grain from all
areas of Arizona would have to be treated. In this final rule, we are
not requiring millfeed to be treated if from grain originating in
surveillance areas. The regulated areas in Arizona include several
surveillance areas. As discussed above, we consider grain from
restricted areas to pose a higher risk. APHIS will continue to allow
destination States willing to accept responsibility to determine the
appropriate treatment and handling based on the intended use within
their States.
One commenter objected to the requirement that millfeed be heat
treated at 170 oF for at least 1 minute, and recommended instead
that the treatment require only instantaneous heating to 170 oF.
The commenter stated that the 1-minute requirement would require
substantial capital investment and would have a negative effect on
mills, which the commenter stated rely on high throughput rates. We are
making no changes based on this comment. The ``1-minute'' requirement
ensures that all surface areas are exposed to a temperature that will
devitalize any spores present.
One commenter stated that the requirement for heat treatment of
millfeed should be maintained unless other effective mitigating
measures can be identified. We agree and are retaining the heat
treatment requirement in this final rule. However, as noted, under this
final rule we are reducing the amount of millfeed that would have to be
treated.
Several commenters recommended that APHIS review the millfeed
treatment requirements, and consider all options that reduce the risk
of further contamination, but that may be more easily incorporated in
existing milling processes. APHIS has reduced the millfeed treatment
requirement and has provided alternatives for disposition in States
willing to accept the responsibility for monitoring. We are continually
looking for other options that are effective and less intrusive, and
are willing to explore any ideas that may be more easily incorporated
into existing milling processes.
Additional Comments
One commenter requested that no areas in New Mexico be classified
as regulated areas. The commenter recommended that no quarantines be
placed on a field in that State unless preharvest sampling shows the
existence of Karnal bunt. We disagree with the commenter's
recommendation. We consider it necessary to continue to regulate these
fields and areas because of the potential movement of contaminated
equipment and seed prior to regulation, and the fact that many fields
that were planted to wheat in years prior have not yet been sampled.
However, under this final rule, all regulated areas in New Mexico will
at this time be classified as surveillance areas, rather than as
restricted areas.
Section 301.89-12(b) of our proposed rule provided that vegetable
crops be cleaned of all soil and plant debris prior to movement outside
the regulated area, or be moved under limited permit to processing
facilities approved by the Administrator. One commenter expressed
concern that this requirement might be applied to fields that have not
been contaminated with Karnal bunt. We believe that requiring that
vegetable crops moving outside the regulated area meet the conditions
for freedom from soil described above is necessary to protect other
wheat production areas.
Section 301.89-12(a) of the proposed rule sets forth cleaning and
disinfection requirements for used mechanized cultivating equipment,
used mechanized harvesting equipment, used farm tools, and used
mechanized soil-moving equipment. One commenter recommended that the
cleaning and disinfection requirements also apply to used seed
conditioning equipment. We agree and are making the appropriate
addition in this final rule.
A number of commenters submitted comments that expressed general
concerns about the economic impact of the Karnal bunt program, without
addressing specific issues. Others expressed general criticisms of the
way the Karnal bunt regulations were being carried out, expressed
concern regarding the effect of the Karnal bunt regulations on
international trade, or expressed an opinion regarding APHIS' role in
research regarding the disease. Although we are not specifically
addressing these comments in this final rule, we have reviewed each one
of them carefully, and share their concerns that the Karnal bunt
program must remain a risk-based program to prevent the artificial
spread of Karnal bunt.
Changes to Areas Regulated Because of Karnal Bunt
A number of commenters recommended that the areas quarantined
because of Karnal bunt be reduced as evidence indicates which areas do
not pose a risk of having the disease. We agree with the commenters.
When the initial quarantined areas were established, they were
deliberately broadly drawn due to the lack of data available at that
time as to the extent of the infestation. Based on sampling and testing
during the past months, we have been able to shrink the areas
designated
[[Page 52206]]
as quarantined areas. In this final rule, we are further reducing areas
regulated because of Karnal bunt.
We are amending Sec. 301.89-3(e) of the regulations by removing the
following portions of the States of Arizona, New Mexico and Texas from
the list of quarantined areas: The entire county of Mohave, AZ,
portions of Dona Ana and Sierra Counties, NM, and portions of El Paso
and Hudspeth Counties, TX. These areas do not produce wheat, durum
wheat, or triticale, or do produce wheat but we have been able to
determine that they have no association with Karnal bunt contaminated
seed, and, therefore, do not present a risk of being, or becoming,
infested with Karnal bunt. In addition, we are making editorial changes
to the description of the quarantined area in Luna County, NM, for
clarity and consistency. The remainder of the counties listed in
Sec. 301.89-3(e) will remain under regulation because of potential
infestation with Karnal bunt.
The area of Dona Ana County, NM, that will remain under regulation
is that portion of the county bounded as follows: Beginning at the
intersection of the Sierra/Dona Ana County line and Interstate 25; then
south along Interstate 25 to the Texas State line; then west and south
along the New Mexico/Texas State line to the United States/Mexico
boundary; then west along the United States/Mexico boundary to the
Luna/Dona Ana County line; then north and east along the Dona Ana
County line to the point of beginning.
The areas of Sierra County, NM, that will remain under regulation
are those portions of the county bounded as follows: (1) Beginning at
intersection of the Luna/Sierra County line and State Route 27; then
north along State Route 27 to State Route 152; then east along State
Route 152 to Interstate 25; then south along Interstate 25 to the Dona
Ana County line; then west and south to the Luna County line; then west
along the Luna/Sierra County line to the point of beginning; and (2)
Beginning at the intersection of the Socorro/Sierra County line and
State Route 142; then southeast along State Route 142 to State Route
52; then south along State Route 52 to Interstate 25; then north along
Interstate 25 to the Socorro/Sierra County line; then west along the
Socorro/Sierra County line to the point of beginning.
The area of El Paso County, TX, that will remain under regulation
is that portion of the county bounded as follows: Beginning at a point
on the Rio Grande River due east from the intersection of County Route
659 and County Route 375; then due east along an imaginary line to
County Route 659; then north along County Route 659 to Interstate 10;
then southeast along Interstate 10 to the El Paso/Hudspeth County line;
then southwest along the El Paso/Hudspeth County line to the Rio Grande
River; then north along the Rio Grande River to the point of beginning.
The area of Hudspeth County, TX, that will remain under regulation
is that portion of the county bounded as follows: Beginning at the
intersection of the El Paso/Hudspeth County line and Interstate 10;
then southeast along Interstate 10 to County Route 34; then south along
County Route 34 to County Route 192; then due south along an imaginary
line to the Rio Grande River; then northwest along the Rio Grande River
to the El Paso/Hudspeth County line; then north along the El Paso/
Hudspeth County line to the point of beginning.
This action relieves unnecessary regulatory restrictions on the
public while continuing to prevent the artificial spread of Karnal bunt
into noninfested areas of the United States. Additionally, in this
final rule as discussed above in this Supplementary Information, the
areas designated as regulated areas in Sec. 301.89-3 of this final rule
are divided into ``restricted areas'' and ``surveillance areas,'' as
set forth in Sec. 301.89-3.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. This rule
has been determined to be economically significant for purposes of
Executive Order 12866 and, therefore, has been reviewed by the Office
of Management and Budget.
This action makes final with certain changes a series of interim
rules establishing and amending regulations regarding a program to
control and eradicate Karnal bunt in the United States, and a proposed
rule establishing criteria for levels of risk for areas with regard to
Karnal bunt, and criteria for seed planting and movement of regulated
articles based on those risk levels. It does not make final an interim
rule establishing compensation for certain growers and handlers, owners
of grain storage facilities, and flour millers in order to mitigate
losses and expenses incurred because of Karnal bunt. We are still
considering issues related to compensation. This rule is being
published on an emergency basis in order to give affected growers the
opportunity to make planting decisions for the 1996-97 crop season on a
timely basis. This emergency situation makes timely compliance with
section 6, subsections (3)(B)(ii) and (3)(C), of Executive Order 12866
impracticable. We will complete the required cost-benefit analysis as
soon as possible and make this information available to the public.
Further, this emergency situation makes compliance with section 603 and
timely compliance with section 604 of the Regulatory Flexibility Act (5
U.S.C. 603 and 604) impracticable. This rule may have a significant
economic impact on a substantial number of small entities. If we
determine this is so, then we will discuss the issues raised by section
604 of the Regulatory Flexibility Act in our Final Regulatory
Flexibility Analysis, which we will publish in a future Federal
Register.
Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L.
104-121, 5 U.S.C. Secs. 801-808)
This rule has been designated by the Administrator, Office of
Information and Regulatory Affairs, Office of Management and Budget, as
a major rule under the Small Business Regulatory Enforcement Fairness
Act of 1996 (Act). The Administrator of the Animal and Plant Health
Inspection Service has determined, however, that there is good cause
for making this rule effective less than 60 days after submission of
the rule to each House of Congress and to the Comptroller General
because a delay in the implementation of this rule would be contrary to
the public interest. It is necessary to make this rule effective 30
days after publication in the Federal Register in order that affected
growers and other regulated parties can make critical planning
decisions for the 1996-1997 crop year. Obviously, it is also essential
to remove, as soon as possible, many other restrictions affecting
growers and other regulated parties that are deemed unnecessary in this
final rule. Section 808 of the Act provides that rules which would be
exempted from the notice and comment provisions of the Administrative
Procedure Act may be excepted from section 801(a)(1)(A), and the delay
in the effective date for major rules under section 801(a)(3). Such
rules may be made effective as the agency promulgating the rule
determines.
A 60-day or longer delay of the effective date for this final rule
would clearly be contrary to the public interest, since it would result
in unnecessary burdens on affected growers and other regulated parties
who would otherwise be released from regulation or be subjected to
lesser regulatory requirements than under the current rules. This is a
critical time for growers in the regulated areas. These growers
[[Page 52207]]
must make their planting decisions promptly for the 1996-1997 crop
season.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are inconsistent with this rule will be preempted; (2)
has no retroactive effect; and (3) does not require administrative
proceedings before parties may file suit in court challenging this
rule.
National Environmental Policy Act
An environmental assessment and finding of no significant impact
have been prepared for this rule. The assessment provides a basis for
the conclusion that the anti-fungicide and other sanitization
treatments required under the Karnal bunt regulations do not present a
risk of introducing or disseminating plant pests and will not have a
significant impact on the quality of the human environment. Based on
the finding of no significant impact, the Administrator of the Animal
and Plant Health Inspection Service has determined that an
environmental impact statement need not be prepared.
The environmental assessment and finding of no significant impact
were prepared in accordance with: (1) The National Environmental Policy
Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), (2) Regulations of the
Council on Environmental Quality for implementing the procedural
provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations
implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing
Procedures (7 CFR part 372).
Copies of the environmental assessment and finding of no
significant impact are available for public inspection at USDA, room
1141, South Building, 14th Street and Independence Avenue SW.,
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday,
except holidays. Persons wishing to inspect copies are requested to
call ahead on (202) 690-2817 to facilitate entry into the reading room.
In addition, copies may be obtained by writing to the individual listed
under FOR FURTHER INFORMATION CONTACT.
Paperwork Reduction Act
This rule contains no new information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA,
APHIS 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, or tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. When such a statement is needed for a
rule, section 205 of the UMRA generally requires APHIS to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, more cost-effective or least burdensome alternative that
achieves the objectives of the rule.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) that may result in expenditures to
State, local, and tribal government, in the aggregate, or to the
private sector, of $100 million or more in any one year. Thus, this
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
List of subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
PART 301--DOMESTIC QUARANTINE NOTICES
Accordingly, 7 CFR part 301 is amended as follows:
1. The authority citation for part 301 continues to read as
follows:
Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, and
164-167; 7 CFR 2.22, 2.80, and 371.2(c).
2. In part 301, ``Subpart--Karnal Bunt,'' Secs. 301.89-1 through
301.89-12, is amended by revising the table of contents and
Secs. 301.89-1 through 301.89-11, by redesignating Sec. 301.89-12 as
Sec. 301.89-14, by and by adding new Secs. 301.89-13 and adding an
Appendix to read as follows:
Subpart--Karnal Bunt
Sec.
301.89-1 Definitions.
301.89-2 Regulated articles.
301.89-3 Regulated areas.
301.89-4 Planting.
301.89-5 Movement of regulated articles from regulated areas.
301.89-6 Issuance of a certificate or limited permit.
301.89-7 Compliance agreements.
301.89-8 Cancellation of a certificate, limited permit, or
compliance agreement.
301.89-9 Assembly and inspection of regulated articles.
301.89-10 Attachment and disposition of certificates and limited
permits.
301.89-11 Costs and charges.
301.89-12 Cleaning and disinfection.
301.89-13 Treatments.
301.89-14 Compensation.
Appendix to Subpart--Karnal Bunt
Sec. 301.89-1 Definitions.
Administrator. The Administrator, Animal and Plant Health
Inspection Service, or any person authorized to act for the
Administrator.
Animal and Plant Health Inspection Service (APHIS). The Animal and
Plant Health Inspection Service of the U.S. Department of Agriculture.
Certificate. A document in which an inspector or a person operating
under a compliance agreement affirms that a specified regulated article
meets the requirements of this subpart and may be moved to any
destination.
Compliance agreement. A written agreement between APHIS and a
person engaged in growing, handling, or moving regulated articles, in
which the person agrees to comply with the provisions of this subpart
and any conditions imposed under this subpart.
Contaminated seed. Seed from sources in which the Karnal bunt
pathogen (Tilletia indica (Mitra) Mundkur) has been determined to
exist.
Conveyances. Containers used to move wheat, durum wheat, or
triticale, or their products, including trucks, trailers, railroad
cars, bins, and hoppers.
Distinct definable area. A commercial wheat production area of
contiguous fields that is separated from other wheat production areas
by desert, mountains, or other nonagricultural terrain as determined by
an inspector, or, in the case of restricted areas, as determined by an
inspector based on survey results, including the number of positive
fields and the relative spore count of the fields within the area.
Farm tools. An instrument worked or used by hand, e.g., hoes,
rakes, shovels, and axes.
Infestation (infected). The presence of Karnal bunt, or any stage
of development of the fungus Tilletia
[[Page 52208]]
indica (Mitra) Mundkur, or the existence of circumstances that make it
reasonable to believe that Karnal bunt is present.
Inspector. An APHIS employee or designated cooperator/collaborator
authorized by the Administrator to enforce the provisions of this
subpart.
Karnal bunt. A plant disease caused by the fungus Tilletia indica
(Mitra) Mundkur.
Limited permit. A document in which an inspector affirms that a
specified regulated article not eligible for a certificate is eligible
for movement only to a specified destination and in accordance with
conditions specified on the permit.
Mechanized cultivating equipment and mechanized harvesting
equipment. Mechanized equipment used for soil tillage, including
tillage attachments for farm tractors--e.g., tractors, disks, plows,
harrows, planters, and subsoilers; mechanized equipment used for
harvesting purposes--e.g., combines, cotton harvesters, and hay balers.
Milling products and byproducts. Products and byproducts resulting
from processing wheat, durum wheat, or triticale, including animal
feed, waste and debris.
Movement (moved). The act of shipping, transporting, delivering, or
receiving for movement, or otherwise aiding, abetting, inducing or
causing to be moved.
Person. Any association, company, corporation, firm, individual,
joint stock company, partnership, society, or any other legal entity.
Premises. All structures, conveyances, or materials associated with
a grain storage facility at a single location.
Soil. The loose surface material of the earth in which plants grow,
in most cases consisting of disintegrated rock with an admixture of
organic material.
Soil-moving equipment. Equipment used for moving or transporting
soil, including, but not limited to, bulldozers, dump trucks, or road
scrapers.
State. The District of Columbia, Puerto Rico, the Northern Mariana
Islands, or any State, territory, or possession of the United States.
Sec. 301.89-2 Regulated articles.
The following are regulated articles:
(a) Conveyances, including trucks, railroad cars, and other
containers used to move wheat, durum wheat, or triticale;
(b) Grain elevators/equipment/structures used for storing and
handling wheat, durum wheat, and triticale;
(c) Milling products or byproducts, except flour;
(d) Plants, or plant parts, including grain, seed, or straw of all
varieties of the following species:
Wheat: Triticum aestivum;
Durum wheat: Triticum durum; and
Triticale: Triticum aestivum X Secale cereale;
(e) Tilletia indica (Mitra) Mundkur;
(f) Root crops with soil;
(g) Soil from areas where field crops are produced;
(h) Manure from animals that have fed on untreated or raw wheat,
durum wheat, or triticale;
(i) Used bags, sacks and containers;
(j) Used farm tools and equipment;
(k) Used mechanized cultivating equipment;
(l) Used mechanized harvesting equipment;
(m) Used seed conditioning equipment;
(n) Used mechanized soil-moving equipment; and
(o) Any other product, article or means of conveyance when:
(1) An inspector determines that it presents a risk of spreading
Karnal bunt due to its proximity to an infestation of Karnal bunt; and
(2) The person in possession of the product, article, or means of
conveyance has been notified that it is regulated under this subpart.
Sec. 301.89-3 Regulated areas.
(a) The Administrator will regulate each State or each portion of a
State that is infected.
(b) Less than an entire State will be listed as a regulated area
only if the Administrator:
(1)(i) Determines that the State has adopted and is enforcing
restrictions on the intrastate movement of the regulated articles
listed in Sec. 301.89-2 that are equivalent to the movement
restrictions imposed by this subpart; and
(ii) Determines that designating less than the entire State as a
regulated area will prevent the spread of Karnal bunt; or
(2) Exercises his or her extraordinary emergency authority under 7
U.S.C. 150dd.
(c) The Administrator may include noninfected acreage within a
regulated area due to its proximity to an infestation or inseparability
from the infected locality for regulatory purposes, as determined by:
(1) Projections of the spread of Karnal bunt along the periphery of
the infestation;
(2) The availability of natural habitats and host materials within
the noninfected acreage that are suitable for establishment and
survival of Karnal bunt; and
(3) The necessity of including uninfected acreage within the
regulated area in order to establish readily identifiable boundaries.
(d) The Administrator or an inspector may temporarily designate any
nonregulated area as a regulated area in accordance with the criteria
specified in paragraphs (a), (b), and (c) of this section. The
Administrator will give written notice of this designation to the owner
or person in possession of the nonregulated area, or, in the case of
publicly owned land, to the person responsible for the management of
the nonregulated area. Thereafter, the movement of any regulated
article from an area temporarily designated as a regulated area is
subject to this subpart. As soon as practicable, this area either will
be added to the list of designated regulated areas in paragraph (e) of
this section, or the Administrator will terminate the designation. The
owner or person in possession of, or, in the case of publicly owned
land, the person responsible for the management of, an area for which
the designation is terminated will be given written notice of the
termination as soon as practicable.
(e) The Administrator will classify areas within the regulated
boundaries as either restricted areas or surveillance areas. Fields
within each restricted area and surveillance area will be classified
according to the following categories:
(1) Restricted areas: A restricted area is a distinct definable
commercial wheat production area that includes at least one field that
tested positive for Karnal bunt. Fields within a restricted area fall
into one of three categories:
(i) Fields in which preharvest samples tested positive for Karnal
bunt;
(ii) Fields known to be planted in the 1995 with seed contaminated
with Karnal bunt; or
(iii) All other fields within a distinct definable area with fields
in which preharvest samples tested positive.
(2) Surveillance areas: A surveillance area is a distinct definable
commercial wheat production area in which no fields have tested
positive for Karnal bunt, but in which movement of contaminated seed
has occurred. Fields within a surveillance area fall into one of three
categories:
(i) Fields known to be planted in 1995 with seed contaminated with
Karnal bunt; or
(ii) All other fields within a distinct definable area that
includes no fields in which preharvest samples tested positive.
(3) Fields in a regulated area for which the Administrator has
given no notification of classification to the
[[Page 52209]]
owner or the person in possession of the field shall be considered to
be fields as described in paragraph (e)(2)(ii) of this section.
(f) The following areas are designated as regulated areas, and
those areas are divided into restricted areas or surveillance areas as
indicated below:
Arizona
Cochise County. The entire county.
(1) Restricted areas. None.
(2) Surveillance areas. The entire regulated area.
Graham County. The entire county.
(1) Restricted areas. Beginning at the intersection of Highway
70 and Black Rock Road; then due east 5 miles along an imaginary
line to the northeast corner of Section 4 in T 5S R24E; then south 9
miles along an imaginary line to the southeast corner of Section 16
in T 6S R24E; then west 8 miles along an imaginary line to the
southwest corner of Section 17 in T 6S R23E; then north 9 miles
along an imaginary line to the northwest corner of Section 5 in T 5S
R23E; then east along an imaginary line to the point of beginning.
(2) Surveillance areas. All other areas within the regulated
area.
LaPaz County. The entire county.
(1) Restricted areas. Beginning at the intersection of Cibola
Road and Baseline Road; then south 2.5 miles on Cibola Road; then
west to Cibola Lake Road; then north along Cibola Lake Road to its
intersection with Cibola Road; then south on Cibola Road to the
point of beginning;
T 3N R11W; T 2N R11W, Sections 1-24;
T 7N R11W, Sections 1-3, Sections 10-15, Sections 22-27, and
Sections 34-36; T 7N R10W; and
The Colorado River Indian Reservation.
(2) Surveillance areas. All other areas within the regulated
area.
Maricopa County. The entire county.
(1) Restricted areas. Beginning at the intersection of the
northeast corner of T 4S R1E and the Maricopa/Pinal County line;
then west along an imaginary line to the northwest corner of T 4S
R3W; then due north along an imaginary line to the northeast corner
of Section 24 in T 2S R4W; then due west along an imaginary line to
the northwest corner of Section 19 in T 2S R5W; then due north along
an imaginary line to the northwest corner of Section 19 in T 4N R5W;
then due east along an imaginary line following Beardsley Road to
its intersection with 40th Street; then due south on 40th Street to
its intersection with Broadway Road; then 12 miles from this
intersection along an imaginary line to the intersection of the
northeast corner of section 25 in T 1S R1E and the Maricopa/Pinal
County line; then south along this county line to the point of
beginning;
T 7N R10W; T 7N R9W; T 8N R9W; T 7N R8W; T 6N R8W;
T 3N R10W; T 2N R10W, Sections 1-24;
T 5S R10W, Sections 25-36; T 6S R10W, Sections 1-18; and
Beginning at the intersection of Baseline Road and the Maricopa/
Pinal County line; then west along Baseline Road to its intersection
with Bush Road; then north along Bush Road to its intersection with
McDowell Road; then west along McDowell Road to its intersection
with Pima Road; then south along Pima Road to its intersection with
Price Road; then south along Price Road to its intersection with
Baseline Road; then west along Baseline Road to its intersection
with 40th Street; then south from this intersection along an
imaginary line to its intersection with the Maricopa/Pinal County
line; then south, west, and north along this county line to the
point of beginning.
(2) Surveillance areas. All other areas within the regulated
area.
Pima County. Beginning at the intersection of the Pima County
line, the Pinal County line, and the Papago Indian Reservation
boundary; then east along the Pima County line to its easternmost
point; then south along the Pima County line to the Cochise and
Santa Cruz County lines; then west along the Pima County line to the
United States/Mexico boundary; then west along the United States/
Mexico boundary to the Papago Indian Reservation boundary; then
north along the Papago Indian Reservation boundary to the point of
beginning.
(1) Restricted areas. None.
(2) Surveillance areas. All other areas in the regulated area.
Pinal County. The entire county.
(1) Restricted areas. T 4S R2E; T 4S R3E; T 4S R4E; T 5S R2E; T
5S R3E; T 5S R 4E; T 6S R2E; T 6S R3E; T 6S R 4E; T 4S R14E;
Beginning at the Toltec junction of the Southern Pacific
Railroad adjacent to Highway 84; then north along Signal Peak Road
to its intersection with Kleck Road; then west on Kleck Road, which
becomes Korsten Road; then west on Korsten Road to its intersection
with Treckell Road; then south on Treckell Road to its intersection
with Shedd Road; then east on Shedd Road to the point of beginn
FR Doc. 96-25549 Karnal Bunt
ing;
Beginning at the intersection of Shay Road and Fast Track Road;
then north 7 miles on Fast Track Road to its intersection with Arica
Road; then west on Arica Road to its intersection with Tweedy Road;
then south on Tweedy Road to its intersection with Shay Road; then
east on Shay Road to the point of beginning;
(2) Surveillance areas. All other areas within the regulated
area.
Yuma County. The entire county.
(1) Restricted areas. Beginning at the intersection of 14th
Street and Avenue 2E; then west on 14th Street to its intersection
with Somerton Avenue; then north on Somerton Avenue to the Arizona/
California State line; then east along the State line to a point
directly north of the intersection of Avenue 2E and County 8th
Street; then south from this intersection along an imaginary line to
the intersection of Avenue 2E and 8th Street; then south on Avenue
2E to the point of beginning;
Beginning at the intersection of I-8 and Foothill Boulevard;
then south on Foothill Boulevard to its intersection with 12th
Street; then west on 12th Street to its intersection with Araby
Road; then north 6 miles on Araby Road to the southern edge of
Section 16 of T 8S R 22W; then east to the California/Arizona State
line; then north along the State line to Laguna Dam; then east along
the southern shore of Mittry Lake and continue to the Yuma Proving
Grounds boundary line; then south and then east along this boundary
line to its intersection with Highway 95; then south along an
imaginary line to the point of beginning; and
Beginning on 5th Street at the Kofa junction of the Southern
Pacific Railroad; then northwest along 5th Street to the Yuma
Proving Grounds boundary line; then west along this boundary line to
the intersection of Highway 95; then south along the Gila Mountains
Range until it intersects the Barry Goldwater Air Force Range; then
east along the Barry Goldwater Air Force Range boundary to its
intersection with the southwest corner of Section 6 in T 8S R 13W;
then north from that point to the point of beginning.
(2) Surveillance areas. All other areas within the regulated
area.
California
Imperial County. The entire county.
(1) Restricted areas. That portion of Imperial County known as
the Bard-Winterhaven area bounded by a line drawn as follows:
Beginning at the intersection of the west boundary line of Range 22
East and the California-Arizona State line; then, north along this
boundary line to its intersection with the All American Canal; then
northeasterly along this canal to its intersection with the south
boundary line of Section 25, Township 15 South, Range 23 East; then
east along this line to its intersection with the California-Arizona
State line; the southerly and westerly along this State line to the
point of beginning; and
That portion of Imperial County known as the Palo Verde Valley
(in part) bounded by a line drawn as follows: Beginning at the
intersection of the Riverside-Imperial County line and the
California-Arizona State line; then, westerly and southerly along
this State line to its intersection with the north boundary line of
Township 10 South; then west along this boundary line to its
intersection with the west boundary line of Range 21 East; then
north along this boundary line to its intersection with the
Riverside-Imperial County line; then easterly along this County line
to the point of beginning.
(2) Surveillance areas. All other areas within the regulated
area.
Riverside County. That portion of Riverside County in the Blythe
and Ripley areas bounded by a line drawn as follows: Beginning at
the intersection of State Highway 62 and the Riverside-San
Bernardino County line, then east along the Riverside-San Bernardino
County line to its intersection with the California-Arizona State
line; then south along the California-Arizona State line to its
intersection with the Riverside-Imperial County line; then west
along the Riverside-Imperial County line to its intersection with
Graham Pass Road; then northeast along Graham Pass Road to its
intersection with Chuckwalla Valley Road; then west and northwest
along Chuckwalla Valley Road to its intersection with Interstate
Highway 10; then west along Interstate Highway 10 to its
intersection with State
[[Page 52210]]
Highway 177; then northeast and north along State Highway 177 to its
intersection with State Highway 62; then northeast along State
Highway 62 to the point of beginning.
(1) Restricted areas: That portion of Riverside County known as
the Palo Verde Valley (in part) bounded by a line drawn as follows:
Beginning at the intersection of the north boundary line of Township
2 South and the California-Arizona State line; then southerly and
southwesterly along this State line to its intersection with the
Riverside-Imperial County line; then westerly along this county line
to its intersection with the west boundary line of Range 21 East;
then north along this boundary line to its intersection with the
north boundary line of Township 2 South; then east along this
boundary line to the point of beginning.
(2) Surveillance areas: All other areas within the regulated
area.
New Mexico
Dona Ana County. Beginning at the intersection of the Sierra/
Dona Ana County line and Interstate 25; then south along Interstate
25 to the Texas State line; then west and south along the New
Mexico/Texas State line to the United States/Mexico boundary; then
west along the United States/Mexico boundary to the Luna/Dona Ana
County line; then north and east along the Dona Ana County line to
the point of beginning.
(1) Restricted areas: None.
(2) Surveillance areas: The entire regulated area.
Hidalgo County. Beginning at the intersection of the Arizona/New
Mexico State line and Interstate 10; then east along Interstate 10
to the Hidalgo/Grant County line; then south and east along the
Hidalgo County line to the Luna County line; then south along the
Hidalgo County line to its southernmost point; then west and north
along the Hidalgo county line to point of beginning.
(1) Restricted areas: None.
(2) Surveillance areas: The entire regulated area.
Luna County. Beginning at the intersection of the Grant/Luna
County line and Interstate 10; then east along Interstate 10 to U.S.
Highway 180; then north along U.S. Highway 180 to State Route 26;
then north along State Route 26 to State Route 27; then north along
State Route 27 to the Luna/Sierra County line; then east along the
Luna County line to the Dona Ana County line; then south along the
Luna County line to the United States/Mexico boundary; then west
along the United States/Mexico boundary to the Hidalgo County line;
then north along the Luna County line to the point of beginning.
(1) Restricted areas. None.
(2) Surveillance areas. The entire regulated area.
Sierra County. Beginning at intersection of the Luna/Sierra
County line and State Route 27; then north along State Route 27 to
State Route 152; then east along State Route 152 to Interstate 25;
then south along Interstate 25 to the Dona Ana County line; then
west and south to the Luna County line; then west along the Luna/
Sierra County line to the point of beginning; and
Beginning at the intersection of the Socorro/Sierra County line
and State Route 142; then southeast along State Route 142 to State
Route 52; then south along State Route 52 to Interstate 25; then
north along Interstate 25 to the Socorro/Sierra County line; then
west along the Socorro/Sierra County line to the point of beginning.
(1) Restricted areas. None.
(2) Surveillance areas. The entire regulated area.
Texas
El Paso County. Beginning at a point on the Rio Grande River due
east from the intersection of County Route 659 and County Route 375;
then due east along an imaginary line to County Route 659; then
north along County Route 659 to Interstate 10; then southeast along
Interstate 10 to the El Paso County line; then southwest along the
El Paso County line to the Rio Grande River; then north along the
Rio Grande River to the point of beginning.
(1) Restricted areas. None.
(2) Surveillance areas. The entire regulated area.
Hudspeth County. Beginning at the intersection of the El Paso/
Hudspeth County line and Interstate 10; then southeast along
Interstate 10 to County Route 34; then south along County Route 34
to County Route 192; then due south along an imaginary line to the
Rio Grande River; then northwest along the Rio Grande River to the
El Paso/Hudspeth County line; then north along the El Paso/Hudspeth
County line to the point of beginning.
(1) Restricted areas. None.
(2) Surveillance areas. The entire regulated area.
Sec. 301.89-4 Planting.
(a) Wheat, durum wheat, and triticale may be planted in all fields
within and outside a regulated area, except as follows:
(1) For the 1996-1997 crop season,\1\ wheat, durum wheat, and
triticale may not be planted in fields in which preharvest samples
conducted by Federal or State official tested positive for Karnal bunt;
---------------------------------------------------------------------------
\1\ The 1996-1997 crop season is that season in which wheat is
harvested in 1997.
---------------------------------------------------------------------------
(2) For the 1996-1997 crop season,\1\ wheat, durum wheat, and
triticale may not be planted in fields known to have been planted in
1995 with seed contaminated with Karnal bunt.
(b) Prior to planting, wheat seed, durum wheat seed, and triticale
seed to be planted within a regulated area must:
(1) First be sampled and test negative for Karnal bunt; then
(2) If originating within a regulated area, be treated with a
fungicide in accordance with Sec. 301.89-13.
Sec. 301.89-5 Movement of regulated articles from regulated areas.
(a) Any regulated article may be moved from a regulated area into
or through an area that is not regulated only if moved under the
following conditions:
(1) With a certificate or limited permit issued and attached in
accordance with Secs. 301.89-6 and 301.89-10;
(2) Without a certificate or limited permit, provided that each of
the following conditions is met:
(i) The regulated article was moved into the regulated area from an
area that is not regulated;
(ii) The point of origin is indicated on a waybill accompanying the
regulated article;
(iii) The regulated article is moved through the regulated area
without stopping, or has been stored, packed, or handled at locations
approved by an inspector as not posing a risk of contamination with
Karnal bunt, or has been treated in accordance with the methods and
procedures prescribed in Sec. 301.89-13 while in or moving through any
regulated area; and
(iv) The article has not been combined or commingled with other
articles so as to lose its individual identity;
(3) Without a certificate or limited permit, provided the regulated
article is a soil sample being moved to a laboratory approved by the
Administrator 2 to process, test, or analyze soil samples.
---------------------------------------------------------------------------
\2\ Criteria that laboratories must meet to become approved to
process, test, or analyze soil, and the list of currently approved
laboratories, may be obtained from the Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, Domestic and
Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland
20737-1236.
---------------------------------------------------------------------------
(b) When an inspector has probable cause to believe a person or
means of conveyance is moving a regulated article, the inspector is
authorized to stop the person or means of conveyance to determine
whether a regulated article is present and to inspect the regulated
article. Articles found to be infected by an inspector, and articles
not in compliance with the regulations in this subpart, may be seized,
quarantined, treated, subjected to other remedial measures, destroyed,
or otherwise disposed of. Any treatments will be in accordance with the
methods and procedures prescribed in Sec. 301.89-13.
Sec. 301.89-6 Issuance of a certificate or limited permit.
(a) An inspector 3 or person operating under a compliance
agreement will
[[Page 52211]]
issue a certificate for the movement of a regulated article outside a
regulated area if he or she determines that the regulated article:
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\3\ Inspectors are assigned to local offices of APHIS, which are
listed in local telephone directories. Information concerning such
local offices may also be obtained from the Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, Domestic and
Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland
20737-1236, or from Karnal Bunt Project, 3658 E. Chipman Rd.
Phoenix, Arizona 85040.
---------------------------------------------------------------------------
(1) Is eligible for unrestricted movement under all other
applicable Federal domestic plant quarantines and regulations;
(2) Is to be moved in compliance with any emergency conditions the
Administrator may impose under 7 U.S.C. 150dd to prevent the artificial
spread of Karnal bunt;4 and
---------------------------------------------------------------------------
\4\ Section 105 of the Federal Plant Pest Act (7 U.S.C. 105dd)
authorizes the Secretary of Agriculture to impose emergency measures
necessary to prevent the spread of plant pests new to, or not widely
prevalent or distributed within and throughout, the United States.
---------------------------------------------------------------------------
(3)(i) Is free of Karnal bunt infestation, based on laboratory
results of testing, and history of previous infestation;
(ii) Has been grown, produced, manufactured, stored, or handled in
a manner that would prevent infestation or destroy all life stages of
Karnal bunt; or
(iii) Has been treated in accordance with methods and procedures
prescribed in Sec. 301.89-13.
(b) To be eligible for movement under a certificate, grain from a
surveillance area must test negative for Karnal bunt twice, and one of
these tests must occur at the means of conveyance or storage facility
immediately prior to movement.
(c) An inspector or a person operating under a compliance agreement
will issue a limited permit for the movement within or outside the
regulated area of a regulated article not eligible for a certificate if
the inspector determines that the regulated article:
(1) Is to be moved to a specified destination for specified
handling, utilization, or processing (the destination and other
conditions to be listed in the limited permit and/or compliance
agreement), and this movement will not result in the artificial spread
of Karnal bunt because Karnal bunt will be destroyed or the risk
mitigated by the specified handling, utilization, or processing;
(2) Is to be moved in compliance with any additional emergency
conditions the Administrator may impose under 7 U.S.C. 150dd to prevent
the artificial spread of Karnal bunt; and
(3) Is eligible for movement under all other Federal domestic plant
quarantines and regulations applicable to the regulated article.
(d) To be eligible for movement under a limited permit, grain from
a restricted area must test negative for Karnal bunt twice, and one of
these tests must occur at the means of conveyance or storage facility
immediately prior to movement.
(e) An inspector shall issue blank certificates and limited permits
to a person operating under a compliance agreement in accordance with
Sec. 301.89-7 or authorize reproduction of the certificates or limited
permits on shipping containers, or both, as requested by the person
operating under the compliance agreement. These certificates and
limited permits may then be completed and used, as needed, for the
movement of regulated articles that have met all of the requirements of
paragraph (a) or (b), respectively, of this section.
Sec. 301.89-7 Compliance agreements.
Persons who grow, handle, or move regulated articles may enter into
a compliance agreement \5\ if such persons review with an inspector
each provision of the compliance agreement, have facilities and
equipment to carry out disinfestation procedures or application of
chemical materials in accordance with Sec. 301.89-13, and meet
applicable State training and certification standards under the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C.
136b). Any person who enters into a compliance agreement with APHIS
must agree to comply with the provisions of this subpart and any
conditions imposed under this subpart.
---------------------------------------------------------------------------
\5\ Compliance agreements may be initiated by contacting a local
office of Plant Protection and Quarantine, which are listed in
telephone directories. The addresses and telephone numbers of local
offices of Plant Protection and Quarantine may also be obtained from
the Animal and Plant Health Inspection Service, Plant Protection and
Quarantine, 4700 River Road Unit 134, Riverdale, Maryland 20737-
1236, or from the Karnal Bunt Project, 3658 E. Chipman Rd., Phoenix,
Arizona 85040.
---------------------------------------------------------------------------
Sec. 301.89-8 Cancellation of a certificate, limited permit, or
compliance agreement.
Any certificate, limited permit, or compliance agreement may be
canceled orally or in writing by an inspector whenever the inspector
determines that the holder of the certificate or limited permit, or the
person who has entered into the compliance agreement, has not complied
with this subpart or any conditions imposed under this subpart. If the
cancellation is oral, the cancellation will become effective
immediately and the cancellation and the reasons for the cancellation
will be confirmed in writing as soon as circumstances allow, but within
20 days after oral notification of the cancellation. Any person whose
certificate, limited permit, or compliance agreement has been canceled
may appeal the decision, in writing, within 10 days after receiving the
written cancellation notice. The appeal must state all of the facts and
reasons that the person wants the Administrator to consider in deciding
the appeal. A hearing may be held to resolve any conflict as to any
material fact. Rules of practice for the hearing will be adopted by the
Administrator. As soon as practicable, the Administrator will grant or
deny the appeal, in writing, stating the reasons for the decision.
Sec. 301.89-9 Assembly and inspection of regulated articles.
(a) Persons requiring certification or other services must request
the services of an inspector \6\ at least 24 hours before the services
are needed.
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\6\ See footnote 3.
---------------------------------------------------------------------------
(b) The regulated articles must be assembled at the place and in
the manner the inspector designates as necessary to comply with this
subpart.
Sec. 301.89-10 Attachment and disposition of certificates and limited
permits.
(a) The consignor must ensure that the certificate or limited
permit authorizing movement of a regulated article is, at all times
during movement, attached to:
(1) The outside of the container encasing the regulated article;
(2) The article itself, if it is not in a container; or
(3) The consignee's copy of the accompanying waybill: Provided,
that the descriptions of the regulated article on the certificate or
limited permit, and on the waybill, are sufficient to identify the
regulated article; and
(b) The carrier must furnish the certificate or limited permit
authorizing movement of a regulated article to the consignee at the
shipment's destination.
Sec. 301.89-11 Costs and charges.
The services of the inspector during normal business hours will be
furnished without cost to persons requiring the services.
The user will be responsible for all costs and charges arising from
inspection and other services provided outside of normal business
hours.
Sec. 301.89-12 Cleaning and disinfection.
(a) Used mechanized cultivating equipment, used seed-conditioning
equipment, used mechanized harvesting equipment, used farm tools, and
used mechanized soil-moving equipment must be cleaned and disinfected
in accordance with Sec. 301-89-12 prior to movement from a regulated
area and, within a regulated area, prior to movement from a field that
tested positive for Karnal bunt during the 1996-97 crop season.
[[Page 52212]]
(b) Prior to movement from a regulated area, vegetable crops must
be cleaned of all soil and plant debris, or be moved under limited
permit to processing facilities approved by the Administrator.
Sec. 301.89-13 Treatments.
(a) All conveyances, mechanized farm equipment, seed-conditioning
equipment, soil-moving equipment, farm tools, grain elevators and
structures used for storing and handling wheat, durum wheat, or
triticale required to be cleaned and disinfected under this subpart
must be cleaned by removing all soil and plant debris and disinfected
by one of the methods specified in paragraph (a)(1) through (a)(4). The
treatment used must be that specified by an inspector if that treatment
is deemed most effective in a given situation:
(1) Wetting all surfaces to the point of runoff with a solution of
1.5 percent sodium hypochlorite--e.g., with a solution of sodium
hypochlorite mixed with water applied at the rate of 1 gallon of
household chlorine bleach (5.2 percent sodium hypochlorite) mixed with
2.5 gallons of water--and letting stand for 15 minutes. The equipment
or site should be thoroughly washed down after 15 minutes to minimize
corrosion; or
(2) Applying steam to all surfaces until the point of runoff, and
so that a critical temperature of 170 deg.F is reached at the point of
contact;
(3) Cleaning with a solution of hot water and detergent, applied
under pressure of at least 30 pounds per square inch, at a minimum
temperature of 180 deg.F; or
(4) Fumigating with methyl bromide at the dosage of 15 pounds/1000
cubic feet for 96 hours.
(b) Soil, and straw/stalks/seed heads for decorative purposes must
be treated by fumigation with methyl bromide at the dosage of 15
pounds/1000 cubic feet for 96 hours, except that straw may move outside
the regulated area without treatment if it has been processed or
manufactured prior to movement, and is intended for use indoors.
(c) Millfeed must be treated with a moist heat treatment of
170 deg. F for at least 1 minute if the millfeed resulted from the
milling of grain from one of the following types of fields:
(1) Fields in which preharvest samples test positive for Karnal
bunt during the 1996-1997 crop season; and
(2) Fields located in a restricted area.
(d) Seed for planting must be treated either:
(1) With 6.8 fl. oz. of Carboxin thiram (10 percent + 10 percent,
0.91 + 0.91 lb. ai./gal.) flowable liquid and 3 fluid ounces of
pentachloronitrobenzene (2.23 lb. ai./gal.) per 100 pounds of seed; or
(2) With 4.0 fluid ounces of Carboxin thiram (1.67 + 1.67 lb. ai./
gal.) flowable liquid and 3 fluid ounces of pentachloronitrobenzene
(2.23 lb. ai./gal.) per 100 pounds of seed.
(e) Seed used for germplasm or for research purposes must be
treated with a 1.5 percent aqueous solution of sodium hypochlorite (=30
percent household bleach) containing 2 ml. of Tween 20TM per liter
agitated for 10 minutes at room temperature followed by a 15-minute
rinse with clean, running water and then by drying, and either:
(1) With 6.8 fl. oz. of Carboxin thiram (10 percent + 10 percent,
0.91 + 0.91 lb. ai./gal.) flowable liquid and 3 fluid ounces of
pentachloronitrobenzene (2.23 lb. ai./gal.) per 100 pounds of seed; or
(2) With 4.0 fluid ounces of Carboxin thiram (1.67 + 1.67 lb. ai./
gal.) flowable liquid and 3 fluid ounces of pentachloronitrobenzene
(2.23 lb. ai./gal.) per 100 pounds of seed.
(f) Bags, sacks, and containers used for seed infected with the
pathogen of Karnal bunt must be fumigated with methyl bromide at the
dosage of 15 pounds/1000 cubic feet for 96 hours.
* * * * *
Appendix to Subpart--Karnal Bunt
Conditions for Wheat Production and Utilization in a Regulated Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Definition Host planting Seed Decontamination Millfeed Survey Disposition of grain
--------------------------------------------------------------------------------------------------------------------------------------------------------
Restricted
area
Category:
1............ Fields in which No host planting Not applicable... Equipment movement Not applicable... Not applicable... Not applicable
preharvest in 1996-97 crop outside regulated
samples tested season. area: cleaned and
positive. sanitized. Movement
within: no
restrictions.
2............ Fields planted No host planting Not applicable... Equipment movement Not applicable... Not applicable... Not applicable
with known in 1996-97 crop outside regulated
contaminated season. area: cleaned and
seed in 1995. sanitized. Movement
within: no
restrictions.
3............ All other fields No restrictions.. Tested and, if Equipment movement Required unless Double-tested: Movement of grain
within from regulated outside regulated destination Sampled in field testing positive
restricted area. area, treated area: cleaned and State controls at harvest; restricted; grain
prior to sanitized. Movement disposition/ composite sample testing negative
planting. within: no movement. prior to may move under
restrictions, movement. limited permit to
except from fields designated
testing positive in facilities under
the 1996-97 crop safeguard and
season. sanitation
conditions
[[Page 52213]]
Surveillance
area
4............ Fields planted No host planting Not applicable... Equipment movement Not applicable... Not applicable... Not applicable.
with known in 1996-97 crop outside regulated
contaminated season. area: cleaned and
seed in 1995. sanitized. Movement
within: no
restrictions.
5............ All other fields No restrictions.. Tested and, if Equipment movement Not required..... Double-tested: Movement of grain
located in from regulated outside regulated Sampled in field testing positive
definable area area, treated area: cleaned and at harvest; restricted; grain
where no fields prior to sanitized. Movement composite sample testing negative
in risk level 1 planting. within: no prior to may move under
are located. restrictions, movement. certificate.
except from fields Safeguard and
testing positive in sanitation of
the 1996-97 crop railcars not
season. required.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Definitions:
Distinct, definable area: A commercial wheat production area of contiguous fields that is separated from other wheat production areas by desert,
mountains, or other nonagricultural terrain as determined by an inspector, or in the case of restricted areas, as determined by an inspector based on
survey results, including the number of positive fields and the relative spore count of the fields within the area.
Regulated area: The area defined in part 301.89-3; includes each State or portion of a State that is infested or associated with Karnal bunt
contaminated seed.
Restricted area: A distinct, definable, commercial wheat production area that includes at least one field that tested positive for Karnal bunt.
Surveillance area: A distinct, definable, commercial wheat production area in which no fields have tested positive for Karnal bunt, but movement of
contaminated seed has occurred.
Done in Washington, DC, this 1st day of October 1996.
A. Strating,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-25549 Filed 10-1-96; 3:46 pm]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-25503 Change in Disease Status of the Czech Republic and Italy Because of Rinderpest and Foot-and-Mouth Disease
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 51769-51771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25503]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Rules
and Regulations
[[Page 51769]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service, USDA.
9 CFR Part 94
[Docket No. 96-027-2]
Change in Disease Status of the Czech Republic and Italy Because
of Rinderpest and Foot-and-Mouth Disease
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are declaring the Czech Republic and Italy free of
rinderpest and foot-and-mouth disease and adding these two countries to
the list of countries that, although declared free of rinderpest and
foot-and-mouth disease, are subject to special restrictions on the
importation of their meat and other animal products into the United
States. This rule removes the prohibition on the importation into the
United States, from the Czech Republic and Italy, of live ruminants and
fresh, chilled, and frozen meat from ruminants and relieves
restrictions on the importation of milk and milk products from
ruminants from these two countries. However, because the Czech Republic
and Italy are not declared to be free of certain diseases of swine,
including hog cholera and swine vesicular disease, the importation from
these countries of swine and fresh, chilled, and frozen meat from swine
continues to be restricted.
EFFECTIVE DATE: October 21, 1996.
FOR FURTHER INFORMATION CONTACT: Dr. John Cougill, Staff Veterinarian,
Products Program, National Center for Import and Export, VS, APHIS,
4700 River Road Unit 40, Riverdale, MD 20737-1228, (301) 734-3399.
SUPPLEMENTARY INFORMATION:
Background
The regulations in 9 CFR part 94 (referred to below as the
regulations) govern the importation into the United States of specified
animals and animal products in order to prevent the introduction into
the United States of various diseases, including rinderpest, foot-and-
mouth disease (FMD), bovine spongiform encephalopathy, African swine
fever, hog cholera, and swine vesicular disease. These are dangerous
and destructive communicable diseases of ruminants and swine.
Section 94.1(a)(1) of the regulations provides that rinderpest or
FMD exists in all countries of the world except those listed in
Sec. 94.1(a)(2), which have been declared to be free of these diseases.
We will consider declaring a country to be free of rinderpest and FMD
if, among other things, there have been no cases of these diseases
reported there for at least the previous 1-year period and no
vaccinations for rinderpest or FMD have been administered to swine or
ruminants in that country for at least the previous 1-year period.
On July 9, 1996, we published in the Federal Register (61 FR 35987-
35990, Docket No. 96-027-1) a proposal to amend the regulations by
adding the Czech Republic and Italy to the list in Sec. 94.1(a)(2) of
countries declared free of rinderpest and FMD and to the list in
Sec. 94.11(a) of countries that are declared free of rinderpest and FMD
but that are subject to special restrictions on the importation of
their meat and other animal products into the United States. The
proposal would remove the prohibition on the importation into the
United States, from the Czech Republic and Italy, of live ruminants and
fresh, chilled, and frozen meat from ruminants and would relieve
restrictions on the importation, from these two countries, of milk and
milk products from ruminants.
We solicited comments concerning our proposal for 60 days ending
September 9, 1996. We did not receive any comments. The facts presented
in the proposed rule still provide the basis for this final rule.
Therefore, based on the rationale set forth in the proposed rule,
we are adopting the provisions of the proposal as a final rule without
change.
Effective Date
This is a substantive rule that relieves restrictions and, pursuant
to the provisions of 5 U.S.C. 553, may be made effective less than 30
days after publication in the Federal Register. This rule removes the
prohibition on the importation into the United States, from the Czech
Republic and Italy, of live ruminants and fresh, chilled, or frozen
meat from ruminants and relieves restrictions on the importation, from
these two countries, of milk and milk products from ruminants. We have
determined that approximately 2 weeks are needed to ensure that the
Animal and Plant Health Inspection Service personnel at ports of entry
receive official notice of this change in the regulations. Therefore,
the Administrator of the Animal and Plant Health Inspection Service has
determined that this rule should be effective 15 days after publication
in the Federal Register.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. For this
action, the Office of Management and Budget has waived its review
process required by Executive Order 12866.
This rule alters the restrictions placed upon imports of live
ruminants and meat, meat products, and dairy products derived from
ruminants from the Czech Republic and Italy. The regulations in 9 CFR
part 94 describe prohibited and restricted importations due to
rinderpest, FMD, and other animal diseases. APHIS has determined that
the Czech Republic and Italy meet the criteria for being recognized as
free of rinderpest and FMD. However, because the Czech Republic and
Italy share land borders and maintain trading relationships with FMD-
affected countries, imports into the United States of live ruminants
and meat, meat products, and dairy products derived from ruminants from
the Czech Republic and Italy continue to be restricted under this rule.
The rule does not relieve any restrictions imposed on the importation
of swine and pork products because the Czech Republic and Italy are
still considered to be affected with hog cholera and swine vesicular
disease, and Italy is also considered to be affected with African swine
fever.
[[Page 51770]]
We anticipate that the quantity of imports of live cattle, sheep,
and goats from the Czech Republic and Italy into the United States will
be minimally affected by the rule. Live cattle imports will still be
restricted due to the trade practices of the Czech Republic and Italy
and the fact that these countries share land borders with FMD-affected
countries. In addition, the cattle industries in the Czech Republic and
Italy are small relative to the enormous domestic market. Cattle
inventories for 1994 were estimated to be 2.5 million head for the
Czech Republic, 7.5 million head for Italy, and over 100 million head
for the United States. Also, of the 2.5 million cattle and calves
imported into the United States in 1994, more than 99 percent were from
Canada and Mexico.
The population of sheep and goats in the Czech Republic is also
very small relative to that of the United States (less than 2.5 percent
of the size of the U.S. population in 1993). Italy has a sheep
population that is slightly higher than that of the United States (11.7
million head in Italy and 10.9 million head in the United States in
1993). However, Italy is a strong net importer of sheep and goats
(190,556 head imported and only 1,450 exported in 1993), while the
United States is a strong net exporter of sheep and goats (28,420 head
imported and 894,100 head exported in 1993). Of the few sheep that the
United States does import, more than 99 percent are from Canada and
Mexico.
The Czech Republic exports few live ruminants to the United States.
In 1994, less than 0.0001 percent of the total value of total U.S.
imports of live ruminants were from the Czech Republic. Italy exported
no live ruminants to the United States in 1994. In fact, the United
States did not import any cattle or sheep from the European Union in
1994. Neither Eastern nor Western Europe are usual sources of live
ruminants for the United States, and any increase in ruminant
importations from the Czech Republic or Italy prompted by this rule are
likely to be negligible. Therefore, the impact on small domestic
farmers of cattle, sheep, and goats is likely to be minimal.
Czech production of beef, veal, mutton, and goat meat in 1994 was
about 2 percent of the size of U.S. production. Italian production of
beef, veal, mutton, and goat meat in 1994 was about 1.2 million metric
tons, or about 11 percent of the U.S. production of 11.3 million metric
tons. The United States imports very little in the way of ruminant meat
and ruminant meat products from Eastern or Western Europe in general.
Moreover, more than 88 percent of the imports of ruminant meat and
ruminant meat products that come into the United States are from
Australia, Canada, and New Zealand. It is unlikely that either the
Czech Republic or Italy will be willing or able to redirect a
significant portion of its ruminant meat production for export
exclusively to the United States as a result of the rule, given that
restrictions remain in place for imports into the United States. Even
if the Czech Republic were able to redirect its entire production of
these products for export to the United States, this production was
only one-fifth the size of total U.S. imports of these products in
1994. Moreover, Italy is a significant net importer of beef, veal,
mutton, and other products such as offal and meat extracts. Therefore,
any effect of the rule on domestic prices or supplies is likely to be
negligible, and thus the impact on small domestic producers will be
minimal.
We also anticipate that the effect of the rule on the importation
of dairy products from the Czech Republic and Italy will be minimal.
Czech production of dairy products is small relative to that of the
United States. In 1993, Czech dairy product production was about 5
percent of the value of U.S. production. The United States imports
little in the way of dairy products from the Czech Republic or from
Eastern Europe in general. In 1994, U.S. imports of dairy products were
valued at $963.4 million; of this total, less than 5 percent originated
in Eastern Europe and less than 0.1 percent in the Czech Republic. The
Czech Republic is a significant producer and exporter of butter.
However, butter is already exempt from the provisions of 9 CFR part 94
and thus will be unaffected by the rule. For dairy products in general,
Italy is a significant net importer and not likely to be willing or
able to redirect a significant portion of its production exclusively to
the United States, which is a significant net exporter. Italy's major
dairy export to the United States is cheese. Because solid cheeses are
already exempt from the provisions of 9 CFR part 94, there is no reason
to believe that imports of cheese will increase significantly due to
this rule. For these reasons and given the fact that restrictions will
remain in place, it is unlikely that the rule will significantly alter
imports of dairy products into the United States. Therefore, the impact
on small domestic dairy producers should be minimal.
Any effects of the rule on importers of embryos, semen, other
genetic material, or breeding animals is also likely to be minimal. We
anticipate that, after the rule becomes effective, there could be an
initial increase in the volume of these products flowing into the
United States to diversify the genetic composition of domestic cattle.
(In particular, there has been a great deal of interest expressed in
obtaining genetic material of beef cattle from Italy.) However, any
temporary increase in volume will most likely be small relative to
total U.S. imports of these products. The United States is a net
exporter of both bovine semen and cattle embryos. In 1994, the value of
U.S. bovine semen and cattle embryo imports was $4.3 million and
$266,000, respectively, while U.S. exports of bovine semen and cattle
embryos were valued at $7.9 million and $6.4 million, respectively.
Given this trade balance and the size differences between the U.S. and
Czech and Italian cattle industries, the amount imported of each type
of genetic material is likely to be minimal and have a minimal impact
on small domestic cattle producers.
In conclusion, declaring the Czech Republic and Italy free of
rinderpest and FMD will likely have a negligible impact on domestic
small entities. Imports from the Czech Republic and Italy of ruminants
and ruminant products continue to be restricted. In addition, the U.S.
markets for these products are large relative to the Czech and Italian
markets, and Italy is a net importer of most of these products. Under
these conditions, it is unlikely that either the Czech Republic or
Italy will be willing or able to redirect a significant portion of the
production of these products exclusively to the United States.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection or
recordkeeping requirements included in this final rule have been
approved by the Office of Management and Budget (OMB). The
[[Page 51771]]
assigned OMB control number is 0579-0015.
List of Subjects in 9 CFR Part 94
Animal diseases, Imports, Livestock, Meat and meat products, Milk,
Poultry and poultry products, Reporting and recordkeeping requirements.
Accordingly, 9 CFR part 94 is amended as follows:
PART 94--RINDERPEST, FOOT-AND-MOUTH DISEASE, FOWL PEST (FOWL
PLAGUE), VELOGENIC VISCEROTROPIC NEWCASTLE DISEASE, AFRICAN SWINE
FEVER, HOG CHOLERA, AND BOVINE SPONGIFORM ENCEPHALOPATHY:
PROHIBITED AND RESTRICTED IMPORTATIONS
1. The authority citation for part 94 continues to read as follows:
Authority: 7 U.S.C. 147a, 150ee, 161, 162, and 450; 19 U.S.C.
1306; 21 U.S.C. 111, 114a, 134a, 134b, 134c, 134f, 136, and 136a; 31
U.S.C. 9701; 42 U.S.C. 4331 and 4332; 7 CFR 2.22, 2.80, and
371.2(d).
Sec. 94.1 [Amended]
2. In Sec. 94.1, paragraph (a)(2) is amended by adding the words
``Czech Republic,'' immediately after the words ``Costa Rica,'' and by
adding the word ``Italy,'' immediately after the word ``Ireland,''.
Sec. 94.11 [Amended]
3. In Sec. 94.11, the first sentence in paragraph (a) is amended by
adding the words ``Czech Republic,'' immediately after the word
``Chile,'' and by adding the word ``Italy,'' immediately after the word
``Hungary,''.
Done in Washington, DC, this 30th day of September 1996.
A. Strating,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-25503 Filed 10-3-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-25501 Viruses, Serums, Toxins, and Analogous Products; Antibody Products
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 51771-51777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25501]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
9 CFR Part 113
[Docket No. 92-124-2]
Viruses, Serums, Toxins, and Analogous Products; Antibody
Products
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends the regulations by revising the designation
for a group of standard requirements from ``Blood Origin Products'' to
``Antibody Products;'' revising five of the six existing standard
requirements in the group; removing the sixth; and adding a new
standard requirement for products intended for the treatment of failure
of passive transfer. These amendments are necessary in order to update
the standard requirements for veterinary biological products and to
provide for their regulation in a manner that is more consistent with
current scientific knowledge and understanding.
EFFECTIVE DATE: November 4, 1996
FOR FURTHER INFORMATION CONTACT: Dr. David A. Espeseth, Deputy
Director, Veterinary Biologics, BBEP, APHIS, 4700 River Road Unit 148,
Riverdale, MD 20737-1237, (301) 734-8245.
SUPPLEMENTARY INFORMATION:
Background
In accordance with the regulations in 9 CFR part 113 (hereinafter
referred to as ``the regulations''), standard requirements are
prescribed for the preparation of veterinary biological products. A
standard requirement consists of specifications, procedures, and test
methods that define the standards of purity, safety, potency, and
efficacy for a veterinary biological product. Where a standard
requirement for a product does not exist, production procedures and
specifications for purity, safety, and potency of a biological product
are provided in an Outline of Production filed with the Animal and
Plant Health Inspection Service (APHIS). For consistency of review and
uniformity of standards, standard requirements are codified in the
regulations.
In recent years, the number of license applications received by
APHIS for antibody products has increased substantially. Historically,
the antibody source material for most of these products has been blood.
Increasingly, however, the Agency is being presented with products for
licensure that are derived from other sources such as colostrum, milk,
and eggs. Standard requirements for many of these products are not
codified in the regulations, and many of the products are not
adequately addressed by the general requirements for blood origin
products in Sec. 113.450.
On July 23, 1993, we published in the Federal Register (58 FR
39462-39467, Docket No. 92-124-1) a proposed rule that would update the
regulations to provide more consistent licensing standards and more
appropriate product-indication statements that, in turn, should provide
greater guidance to manufacturers and lead to more reliable products.
We solicited comments concerning our proposal for 60 days ending
September 21, 1993. We received twelve sets of comments by that date.
They were from eight manufacturers of veterinary biological products,
three consultants, and a national trade association.
One commenter asked what the impact of the rule would be on a
product that is currently licensed by APHIS as a veterinary biological
but for which no biologic-type claim (i.e., a claim that a product
functions through an immunologic mechanism to diagnose, prevent, or
alleviate animal disease) is made, overtly or by implication. The
commenter noted that the proposed regulations do not seem to
specifically address this category of product. In response to the
commenter, APHIS notes that these type of products were licensed at the
request of producers for use in the nonspecific treatment of anemia,
hemorrhage, or shock that may follow injury to horses. The regulations
referred to such products as ``normal serum.'' This regulation does not
specifically address normal serum because it is not a product which is
required to be licensed. Therefore, no new licenses shall be issued for
normal serum, which is not intended to affect the immune mechanism.
APHIS will work with the producers of any such product that may be
currently licensed to resolve any questions involving these type of
products. No change to the regulations is made in response to this
comment.
One commenter criticized the proposed nomenclature for products
intended for the treatment of failure of passive transfer (FPT)
proposed in Sec. 113.450(b)(3). The commenter asserted that to refer to
these products as ``IgG'' is misleading because such products may
contain ``many other protective factors.'' In response to the
commenter, APHIS believes the nomenclature proposed for products for
the treatment of FPT is appropriate for this category of biological
product. The reason for this is that FPT is most commonly defined as a
below normal level of circulating, maternally derived immunoglobulin G
(IgG) in the neonate, the awareness that IgG is measured in the
establishment of product efficacy and potency, and the understanding
that the ``other protective factors'' (i.e., substances other than
immunoglobulins) cited are at best very poorly characterized. No change
to the regulations is made in response to this comment.
Three commenters suggested other changes to proposed
Sec. 113.450(c). Two of the commenters stated that the proposed
regulations precluded the use of slaughterhouse blood as an antibody
[[Page 51772]]
source and opined that the proposed restriction is unwarranted. APHIS
believes that, unless slaughtered animals are from a herd that is
maintained at a licensed establishment, physically examined, and tested
to ensure freedom from infectious disease, their blood is unacceptable
as a source of antibody. In this respect, the proposed regulations
differ little from the current regulations. Assurance of the health of
donor animals is necessary to reduce the risk of product contamination
from infectious agents. No change to the regulations is made in
response to these comments.
The other commenter addressed the provision in proposed
Sec. 113.450(c) that would exempt cattle from Grade A dairies supplying
lacteal secretions for the manufacture of a veterinary antibody product
from being maintained at a licensed establishment. The commenter
recommended that the exemption be broadened to include cattle from
Grade B dairies. In response to the commenter, APHIS notes that while
Grade A dairies are required to conform to the provisions of the Food
and Drug Administration's Grade ``A'' Pasteurized Milk Ordinance, the
regulations that apply to dairies supplying Manufacturing Grade milk
are less uniform and usually less stringent. In addition, monitoring of
``Grade B'' dairies is significantly less rigorous. Exempting Grade A
dairies in Sec. 113.450(c) strikes an appropriate balance between
assuring pure, safe, and efficacious products and recognizing that
maintenance of a dairy herd of sufficient size at a licensed
establishment would be an economic burden. No change to the regulations
is made in response to this comment.
Three commenters provided remarks concerning proposed
Sec. 113.450(e). One commenter felt that the specified radiation dose
should be reduced from 3.0 megarads to at least 2.5 megarads to be more
consistent with published information in this area. APHIS agrees with
this comment. In addition, we believe the rules should allow a narrow
range in the level of radiation, since it is often difficult to assure
that an exact radiation dose will be delivered. In response to this
comment, the regulations in Secs. 113.450(e)(1), 113.450(e)(2), and
113.450(e)(3) are revised to indicate that the level of ionizing
radiation to which applicable source material must be subjected shall
be at least 2.5 megarads, and that a maximum radiation dosage is to be
specified in the Outline of Production, based on data for that product.
The second commenter stated that the proposed treatment methods for
the inactivation of extraneous agents would be too limited and that
other methods of treatment should be considered by the Agency. In
response to the commenter, APHIS agrees that other procedures may be as
or more effective than those proposed. We agree that other procedures
may be more appropriate for some source materials and that greater
flexibility is needed. We are therefore amending the introductory
paragraph of proposed Sec. 113.450(e) to allow the use of another
procedure, provided it is demonstrated to be at least as effective by
data acceptable to APHIS and the procedure chosen is described in the
filed Outline of Production for the product. Data submitted should
demonstrate the alternative procedure is at least as effective against
a battery of potential contaminating pathogenic microorganisms as the
thermal- and irradiation-treatment methods specified.
The third commenter asserted that treatment of certain source
materials is unnecessary because of the manner in which the materials
are obtained. The commenter added that for certain materials, the
proposed irradiation regimen would be acceptable (i.e., it would not
render the materials unsuitable for use in production) only if the
materials were manipulated in special, costly ways prior to treatment.
In response to the commenter, the proposed regulations are the same as
the current regulations in requiring treatment of source materials.
APHIS believes that treatment that is demonstrated to be effective in
eliminating viable pathogenic microorganisms is an essential component
of an established protocol to ensure that an antibody product poses
minimal risk for transmitting a potential pathogen. Regarding the claim
that irradiation is unsuitable for certain substances, APHIS believes
that ionizing radiation at the levels prescribed may impact the
physical character of some source materials. Many of these materials,
however, may be successfully heat treated. Because some source
materials may not be amenable to either heating or exposure to ionizing
radiation, APHIS believes flexibility should be provided in the
regulations to permit the use of other procedures, provided that they
can be shown to be as effective as the proposed methods for the
intended purpose. As explained above, we have amended Sec. 113.450(e)
to provide such flexibility.
One commenter expressed opposition to the regulations in proposed
Sec. 113.450(h)(2) that require that any retest for purity of dried
products for oral administration be conducted within 21 days of the
original test. The commenter stated that ``valid circumstances may
arise that prevent a test from being restarted within the 21 day time
frame.'' In response to the commenter, we believe that some time limit
must be prescribed, that it would be improper to allow a very long
period of time to elapse before retesting, and that the proposed period
would, in almost all situations, prove acceptable to the manufacturer.
If we are presented with legitimate ``valid circumstances'' by a
manufacturer, an extension of the time period for retest could be
considered under the provisions of Sec. 113.4. No change to the
regulations is made in response to this comment.
Ten commenters expressed opinions concerning proposed Sec. 113.499,
which refers to products for the treatment of FPT. Eight of the
commenters felt it was inappropriate to restrict the recommendation of
a product to use only in neonates of the same species as that of
antibody origin. It appears that five of the commenters misinterpreted
the regulations, incorrectly interpreting them to mean that the
restriction extended to all antibody products, not just to products
intended for the treatment of FPT. In response to the three commenters
who correctly interpreted the restriction to apply only to products
intended for the treatment of FTP, APHIS believes its position is
appropriate. An acceptable FPT product is one that, at the recommended
dose, raises the serum IgG concentration of maternal-IgG-deficient
neonates by a specified minimum amount. This increase in serum IgG
concentration might be expected to confer a significant degree of
protection against a broad spectrum of potential pathogens. With few
exceptions, however, true broad-spectrum protection by FPT products has
not been demonstrated. Furthermore, the potency test for such products,
conducted to ensure that a dose of product has at least a minimum
quantity of IgG, does not measure the ability of the product to protect
against or alleviate disease. Upon considering factors such as antibody
functionality, antibody half-life, and the spectrum of antibody
activity, the Agency believes that the meaningful clinical efficacy of
heterologous (i.e., derived from a different species) FPT products is
simply too uncertain to warrant their licensure. No change to the
regulations is made in response to these comments.
One commenter stated that the proposed requirement that
parenterally administered products for the treatment of FPT should be
recommended for use only in animals 120 hours of age or less would be
too restrictive. In response to the commenter, APHIS notes that some
[[Page 51773]]
manufacturers of parenterally-administered FPT products have
recommended that the products be used in animals of virtually any age,
even though FPT is limited to neonatal animals. We believed that the
inclusion in the proposed regulations of a prohibition against
recommending such products for use in older animals would aid in
preventing misuse of the product. However, we agree that the proposed
rule may have been too restrictive in this regard. Therefore, in
response to the comment, APHIS has revised the regulations in
Sec. 113.499 to specify that parenterally administered products for the
treatment of FPT be recommended for use only in neonatal animals.
Two commenters expressed concern with the regulations in proposed
Sec. 113.499(a) pertaining to the establishment of an IgG Reference
Product. One commenter stated that ``IgG Reference Product'' and ``IgG
Species Standard'' should be more clearly defined and that requiring
the establishment of an IgG Reference Product was inappropriate. The
commenter described an alternative method for establishing product
efficacy and ensuring adequate potency of production serials that was
not entirely clear. In response to the commenter, we have amended the
regulations to define more completely ``IgG Reference Product'' and
``IgG Species Standard''. In further response to the commenter, we
believe that, based on the high degree of variability between radial
immunodiffusion (RID) kits for IgG, an IgG Reference Product must be
qualified (i.e., shown through efficacy testing to be an acceptable
potency test reference).
The other commenter stated that the proposed requirement that dose
size be based on body weight should be eliminated. The commenter
asserted that because FPT products are usually marketed in a single
dose size for all animals for which they are intended, and labels for
veterinary biologics are required to state that the entire contents of
a container must be used when first opened, portions of containers will
often have to be discarded. The commenter also believed that the
preparation of an IgG Species Standard would be improper because a
standard appropriate for one species would not be appropriate for
another. In response to the commenter, we acknowledge that
historically, recommended dosages of FPT products have not been linked
to body weight and that consumers have come to expect this. As a
result, we are amending the regulations to indicate that an IgG
Reference Product may be established with a single-dose size for all
animals, as long as the animals used are at or near the maximum weight
for neonates of the species. Regarding the IgG Species Standard, it is
not APHIS' intent to have a single standard for all species. Different
standards would be prepared for calves, foals, pigs, and so on.
In addition to the comments received, APHIS is making the following
changes to the regulations for clarity. APHIS notes that the test media
specified in proposed Secs. 113.450(h)(2)(i) and 113.450(h)(2)(ii) are
quite selective. It is possible, however, that an occasional
noncoliform or nonSalmonella growth may appear on one or more test
plates. To allow for this possibility, the regulations under these
sections are revised to change the term ``growth'' to ``characteristic
growth'' to indicate that the purity test is intended to screen for the
growth of specified bacteria.
APHIS also notes that some antibody source materials--for example,
whey from cheese making operations--may contain high levels of
innocuous bacteria, and that biological products made from these
materials may contain so many bacteria per dose that rehydrated product
would have to be further diluted to do a meaningful total bacterial
count as proposed in Sec. 113.450(h)(2)(iv). To allow for this, the
regulations are revised to provide for an appropriate dilution of the
rehydrated sample prior to its addition to the test plates.
APHIS further notes that the regulations in Secs. 113.499(a) and
113.499(c) may not make it clear whether one IgG measurement is to be
obtained from each of five radial immunodiffusion (RID) plates or if
five IgG measurements may be obtained from just one, or possibly two,
RID plates. In addition, APHIS believes that five IgG measurements of
each of the paired serum samples to qualify an IgG Reference Product is
unnecessary. The regulations are revised to specify that ``five IgG
measurements'' be made (Sec. 113.499(a)(6) and (c)) and to replace the
proposed five replicate tests with one concurrent test for paired serum
samples (Sec. 113.499(a)(5)).
In addition, APHIS notes that because the RID assay is
semiquantitative, five IgG measurements of two samples instead of one,
as proposed, should be made for retests for potency of serials of FPT
products. The regulations are revised in Sec. 113.499(c) to specify
that two samples of a serial be included in a retest instead of one.
This is consistent with retest requirements for other product types.
Therefore, based on the rationale set forth in the proposed rule
and in this document, we are adopting the provisions of the proposed
rule as a final rule, with the changes discussed in this document. The
agency will review, on a case-by-case basis, within one year after the
effective date of this rule, products that may be affected by this rule
to ensure that such products come into conformance by the end of the
review period.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
The amendments to the regulations should, in most instances, either
have no significant economic impact or have a positive economic impact.
For example, manufacturers will not be restricted to pasteurization for
the treatment of source materials. Where this final rule may have a
negative economic impact on manufacturing, such impact should be
minimal. A negative impact may arise because this rule prohibits
recommendations for cross-species use of FPT products. Notification,
however, that such a prohibition was being considered was given by
APHIS over 7 years ago.
Sections 113.450 through 113.455 are amended to reflect current
scientific understanding and to establish uniform standards for
antibody products made from substances other than blood. One such
amendment is the provision for use of other procedures for eliminating
potential contaminating microorganisms. The Agency believes the
amendment is important because the Agency intends to require that all
antibody products be subjected to an appropriate procedure for
inactivation of potential contaminating microorganisms or another
procedure demonstrated to be equally effective in eliminating viable
pathogenic microorganisms. Currently, equine plasma products are
exempted from heat treatment by approval of Outlines of Production. At
the time this exemption was given, no other products were available for
treatment of FPT in foals and it was believed that plasma-based
products were not amenable to heat treatment. Certain equine FPT
products that are now licensed are subjected to a treatment step in
their manufacture. The Agency believes that no special benefit
associated with the biologic-type claim has been demonstrated for
plasma-based products to offset the added risk associated with no
procedure for elimination. The amendment will give the manufacturers
[[Page 51774]]
of antibody products derived from equine plasma the option to use other
procedures for such products provided they are demonstrated to be
equally effective as heat or irradiation treatment by data acceptable
to APHIS.
Section 113.499 is added to provide standards for products for the
treatment of failure of passive transfer. The addition of the provision
in this section that restricts the use of such products to the same
species as that of antibody origin will economically impact the one
manufacturer of an FPT product currently approved for cross-species
use. The firm was notified over 7 years ago of our intent to establish
such regulations that would restrict the recommendations for use of its
product. The Agency believes the firm has been given adequate notice to
provide compelling efficacy and potency data or prepare for the removal
of the cross-species recommendation from labeling and advertising.
Given the length of time from notification, we believe the loss of the
recommendation should result in minimal economic loss to the producer.
The addition of Sec. 113.499 may initially increase the cost to
some FPT product manufacturers as necessary label changes are made and
IgG Reference Products are qualified. This is not unexpected when a
standard requirement is codified. No negative economic impact beyond
that initially incurred is anticipated. Firms will be given one year
from the effective date of this rule to come into compliance with it.
We do not expect any increase in cost to the other biologics
manufacturers affected by this rule.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Paperwork Reduction Act
This rule contains no new information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
This rule would not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule. There are no administrative procedures that must be exhausted
prior to a judicial challenge to the provisions of this rule.
Regulatory Reform
This action is part of the President's Regulatory Reform
Initiative, which, among other things, directs agencies to remove
obsolete and unnecessary regulations and to find less burdensome ways
to achieve regulatory goals.
List of Subjects in 9 CFR Part 113
Animal biologics, Exports, Imports, Reporting and recordkeeping
requirements.
Accordingly, 9 CFR part 113 is amended as follows:
PART 113--STANDARD REQUIREMENTS
1. The authority citation for part 113 continues to read as
follows:
Authority: 21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.2(d).
2. The undesignated center heading preceding Sec. 113.450 is
revised to read ``ANTIBODY PRODUCTS''.
3. Section 113.450 is revised to read as follows:
Sec. 113.450 General requirements for antibody products.
Unless otherwise prescribed in a Standard Requirement or in a filed
Outline of Production, all antibody products shall meet the applicable
requirements of this section.
(a) Terminology. The following terms in the regulations and
standards concerning antibody products shall mean:
Antibody. An immunoglobulin molecule, having a precise glycoprotein
structure, produced by certain cells of the B lymphocyte lineage in
response to antigenic stimulation, and functioning to specifically bind
and influence the antigens that induced its synthesis.
IgG (Immunoglobulin G). One of the several recognized classes of
structurally related glycoproteins whose representatives include all
known antibodies.
Monoclonal. Produced by, or derived from, the offspring of a single
common progenitor cell.
Failure of passive transfer. A condition of neonates characterized
by an abnormally low concentration of circulating maternal IgG.
(b) Nomenclature. Antibody products shall be named as follows:
(1) Virus-specific products. The true name of a virus-specific
product shall: include the term ``antibody,'' specify the disease for
which the product is intended, and indicate the type of animal that
supplied the component antibodies. If the antibodies are monoclonal,
the term ``monoclonal'' shall be used. Example: ``Duck Virus Hepatitis
Antibody, Duck Origin.''
(2) Bacterium-specific products. The true name of a bacterium-
specific product shall: include the term ``antibody'' if the component
antibodies are directed against a nontoxin antigen or the term
``antitoxin'' if the component antibodies are directed against toxin,
specify the organism against which the product is intended, and
indicate the type of animal that supplied the component antibodies. If
the antibodies are monoclonal, the term ``monoclonal'' shall be used.
Example: ``Escherichia Coli Monoclonal Antibody, Murine Origin.''
(3) Failure of passive transfer products. The true name of a
product for treatment of failure of passive transfer shall include the
term ``IgG'' and indicate the type of animal that supplied the
component IgG. Example: ``Bovine IgG.''
(4) Combination products. The true name of a product for treatment
of failure of passive transfer as well as for the prevention and/or
alleviation of a specific viral or bacterial disease shall be named
according to the nomenclature prescribed above for virus-specific or
bacterium-specific products.
(c) Animals. All animals used in the production of antibody
products shall be healthy. Their health status shall be determined by
physical examination by, or under the direct supervision of, a licensed
veterinarian and by tests for infectious diseases. Such animals shall
be maintained at licensed establishments: Provided, That cows
maintained at Grade A dairies (or the equivalent) that are not injected
with antigens for the purpose of stimulating the production of specific
antibodies and that are used only for the purpose of supplying lacteal
secretions are exempt from being maintained at a licensed
establishment.
(1) No animal shall be used while showing clinical signs of
disease. The presence of minor localized injuries or lesions
(contusions, lacerations, burns, etc.) without body temperature
elevation and without significant pain
[[Page 51775]]
and distress shall not be construed as clinical evidence of disease.
(2) Before first use and on a regular basis, all animals used in
the manufacture of antibody products shall be individually subjected to
applicable tests for infectious diseases. Records of all test results
shall be maintained. An animal which tests positive for an infectious
disease shall not be used in the manufacture of antibody products.
Retests shall be conducted as deemed necessary by the Administrator.
(i) Before first use, horses shall be tested as follows for:
(A) Equine infectious anemia (EIA) at a laboratory approved by
APHIS.
(B) Piroplasmosis, dourine, and glanders at the National Veterinary
Services Laboratories.
(C) Brucellosis at a laboratory approved by APHIS. Horses with
standard agglutination titers of 1:50 or less can be used for
production. Horses with standard agglutination titers equal to or
greater than 1:100 may be tested by the Rivanol or card tests. Reactors
to these supplemental tests shall not be used for production.
Nonreactors to the supplemental tests shall be retested after 30 days.
If the supplemental tests are negative and the agglutination titer has
not increased, the animal may be used for production. Otherwise, the
animal is unsatisfactory for this purpose.
(ii) Horses shall be retested annually for EIA and, if housed or
pastured with any other species, shall be retested annually for
brucellosis.
(iii) Before first use, cattle shall be tested as follows for:
(A) Tuberculosis by an accredited veterinarian: Provided, That
cattle at Grade A dairies supplying only lacteal secretions need only
be tested for tuberculosis in accordance with applicable Milk
Ordinances or similar laws or regulations.
(B) Brucellosis at a laboratory approved by APHIS. Cattle with
standard agglutination titers of 1:50 or less can be used for
production. Cattle with standard agglutination titers equal to or
greater than 1:100 may be tested by the Rivanol or card tests. Reactors
to these supplemental tests shall not be used for production.
Nonreactors to the supplemental tests shall be retested after 30 days.
If the supplemental tests are negative and the agglutination titer has
not increased, the animal may be used for production; otherwise, the
animal is unsatisfactory for this purpose. Cattle at Grade A dairies
supplying only lacteal secretions need not be tested individually for
brucellosis if a portion of their secretions contribute to the herd
milk pool tested as required by the brucellosis ring test. An animal of
a herd testing positive by this test shall not be used in production.
(iv) Cattle shall be retested annually for both tuberculosis and
brucellosis. Cattle at Grade A dairies supplying only lacteal
secretions need only be tested for tuberculosis in accordance with
applicable Milk Ordinances or similar laws or regulations. Cattle at
Grade A dairies supplying only lacteal secretions need not be tested
individually for brucellosis if a portion of their secretions
contribute to the herd milk pool tested as required by the brucellosis
ring test. An animal of a herd testing positive by this test shall not
be used in production.
(v) For other species, appropriate tests and the frequency with
which they are applied shall be specified in the filed Outline of
Production for the product.
(vi) If a positive result is obtained on any prescribed test, the
positive animal(s) shall be removed from the herd and the remaining
animals retested. Production shall not be renewed until a negative herd
test is obtained not less than 28 days following removal of the
positive animal(s).
(vii) Negative animals shall be maintained separate and apart from
untested or positive animals of any species. Production animals shall
not be used for any other purpose, such as testing, work, or
recreation.
(d) Collection procedures. Blood, lacteal secretions, and egg
material shall be collected as described in the filed Outline of
Production for the product.
(e) Ingredient handling and processing. Blood derivatives (serum,
plasma, etc.), lacteal secretions, and egg material used in the
production of antibody products shall be subjected to an appropriate
procedure for the inactivation of potential contaminating
microorganisms. The procedure shall be one of those described below and
specified in the filed Outline of Production for the product: Provided,
That another procedure may be substituted if demonstrated to be at
least as effective by data acceptable to APHIS and specified in the
filed Outline of Production for the product. These data are expected to
come from a study comparing the effectiveness of the established and
substitute procedures against a satisfactory battery of potential
contaminating microorganisms.
(1) Blood derivatives of equine origin shall be heated at 58.0-
59.0 deg. C for 60 minutes, and blood derivatives of bovine, porcine,
or other origin shall be heated at 58.0-59.0 deg. C for 30 minutes. In
lieu of heat treatment, blood derivatives of any origin may be treated
with at least 2.5 megarads of ionizing radiation, with a maximum
radiation dosage specified in the filed Outline of Production for the
product.
(2) Lacteal secretions shall be heated as described in paragraph
(e)(1) of this section, or shall be pasteurized at either 72 deg. C for
15 seconds or 89 deg. C for 1 second using appropriate equipment. In
lieu of the heat treatment regimens prescribed, lacteal secretions may
be treated with at least 2.5 megarads of ionizing radiation, with a
maximum radiation dosage specified in the Outline of Production for the
product.
(3) Egg material shall be heated at 58.0-59.0 deg. C for 30
minutes, or treated with at least 2.5 megarads of ionizing radiation,
with a maximum radiation dosage specified in the filed Outline of
Production for the product.
(4) Blood derivatives, lacteal secretions, and egg material shall
not contain preservatives at the time of heat treatment, and
immediately after heat treatment shall be cooled to 7 deg. C or lower.
(5) Licensees shall keep detailed records as to each batch treated
and each serial of product prepared for marketing. Recording charts
shall bear full information concerning the material treated and tests
made of the equipment used for treatment.
(f) Preservatives. Liquid antibody products, except those
immediately frozen following preparation and maintained in a frozen
state until time of use, shall contain at least one preservative from
the following list, within the range of concentration set forth:
(1) Phenol 0.25 to 0.55 percent, or
(2) Cresol 0.10 to 0.30 percent, and/or
(3) Thimerosal 0.01 to 0.03 percent, or
(4) Other preservative(s) specified in the filed Outline of
Production for the product.
(g) Antigens for hyperimmunization. If animals are hyperimmunized
to generate antibodies for a product for the prevention and/or
alleviation of a specific infectious disease, and a USDA-licensed
veterinary biological product is not employed for this purpose, the
following shall apply:
(1) For each antigen, a Master Seed shall be established.
(i) Bacterial Master Seeds shall be tested for purity and identity
as prescribed for live bacterial vaccines in Sec. 113.64.
(ii) Viral Master Seeds shall be tested for purity and identity as
prescribed for live virus vaccines in Sec. 113.300.
(2) The maximum allowable passage level of the hyperimmunizing
antigen shall be the passage level of the antigen used to generate
product shown to be
[[Page 51776]]
efficacious and shall not exceed 10 passages from the Master Seed.
(h) Purity tests. Final container samples of each serial and each
subserial shall be tested for viable bacteria and fungi as follows:
(1) Dried products for parenteral administration and liquid
products shall be tested as prescribed in Sec. 113.26.
(2) For dried products for oral administration, 10 final container
samples shall be reconstituted with sterile water at the volume
recommended on the label and tested for the following contaminants:
(i) Coliforms. One milliliter of each rehydrated sample shall be
pipetted into a 100 x 15 mm petri dish and 10-15 ml of violet red
bile agar at 45-50 deg. C added. The plate shall be manipulated to coat
its entirety with the agar-sample mixture and allowed to stand until
the mixture solidifies. The plate shall then be incubated at 35 deg. C
for 24 hours. A positive control plate and a negative control plate
shall be prepared at the same time and in the same manner as the plates
containing samples of the serial. All plates shall be examined at the
end of the incubation period. If characteristic growth is observed on
the negative control plate, or no characteristic growth is observed on
the positive control plate, the test shall be considered inconclusive
and may be repeated. If characteristic growth is observed on any of the
10 plates containing samples of the serial, one retest to rule out
faulty technique may be conducted on samples from 20 final containers.
If characteristic growth is observed on any of the retest plates, or if
a retest is not initiated within 21 days of the completion of the
original test, the serial or subserial is unsatisfactory.
(ii) Salmonellae. One milliliter of each rehydrated sample shall be
pipetted into a 100 x 15 mm petri dish and 10-15 ml of brilliant
green agar at 45-50 deg. C added. The dish shall be manipulated to coat
its entirety with the agar-sample mixture and allowed to stand until
the mixture solidifies. The plate shall then be incubated at 35 deg. C
for 24 hours. A positive control plate and a negative control plate
shall be prepared at the same time and in the same manner as the plates
containing samples of the serial. All plates shall be examined at the
end of the incubation period. If characteristic growth is observed on
the negative control plate, or no characteristic growth is observed on
the positive control plate, the test shall be considered inconclusive
and may be repeated. If characteristic growth is observed on any of the
10 plates containing samples of the serial, one retest to rule out
faulty technique may be conducted on samples from 20 final containers.
If characteristic growth is observed on any of the retest plates, or if
a retest is not initiated within 21 days of the completion of the
original test, the serial or subserial is unsatisfactory.
(iii) Fungi. One milliliter of each rehydrated sample shall be
pipetted into a 100 x 15 mm petri dish and 10-15 ml of appropriately
acidified potato dextrose agar at 45-50 deg. C added. The plate shall
be manipulated to coat its entirety with the agar-sample mixture and
allowed to stand until the mixture solidifies. The plate shall then be
incubated at 20-25 deg. C for 5 days. A positive control plate and a
negative control plate shall be prepared at the same time and in the
same manner as the plates containing samples of the serial. All plates
shall be examined at the end of the incubation period. If growth is
observed on the negative control plate, or no growth is observed on the
positive control plate, the test shall be considered inconclusive and
may be repeated. If growth is observed on any of the 10 plates
containing samples of the serial, one retest to rule out faulty
technique may be conducted on samples from 20 final containers. If
growth is observed on any of the retest plates, or if a retest is not
initiated within 21 days of the completion of the original test, the
serial or subserial is unsatisfactory.
(iv) Total bacterial count. One milliliter of each rehydrated
sample, undiluted or diluted as prescribed in the Outline of
Production, shall be pipetted into a 100 x 15 mm petri dish and 10-15
ml of tryptone glucose extract agar at 45-50 deg. C added. The plate
shall be manipulated to coat its entirety with the agar-sample mixture
and allowed to stand until the mixture solidifies. The plate shall then
be incubated at 35 deg. C for 48 hours. A positive control plate and a
negative control plate shall be prepared at the same time and in the
same manner as the plates containing samples of the serial. All plates
shall be examined at the end of the incubation period. If growth is
observed on the negative control plate, or no growth is observed on the
positive control plate, the test shall be considered inconclusive and
may be repeated. If the average number of bacterial colonies on the 10
plates containing samples of the serial exceeds that specified in the
filed Outline of Production for the product, one retest to rule out
faulty technique may be conducted on samples from 20 final containers.
If the average number of bacterial colonies on the retest plates
exceeds that specified in the filed Outline of Production for the
product, or if a retest is not initiated within 21 days of the
completion of the original test, the serial or subserial is
unsatisfactory.
(i) Safety tests. Bulk or final container samples of each serial
shall be tested as prescribed in Sec. 113.33(b). Dried product shall be
reconstituted as indicated on the label and 0.5 ml injected per mouse.
4. In Sec. 113.451, paragraphs (b) and (c) are removed, paragraph
(d) is redesignated paragraph (b), and the introductory text of the
section is revised to read as follows:
Sec. 113.451 Tetanus Antitoxin.
Tetanus Antitoxin is a specific antibody product containing
antibodies directed against the toxin of Clostridium tetani. Each
serial shall meet the applicable general requirements provided in
Sec. 113.450 and paragraph (a) of this section, and be tested for
potency as provided in paragraph (b) of this section. Any serial found
unsatisfactory by a prescribed test shall not be released.
* * * * *
5. In Sec. 113.452, the section heading, introductory text of the
section, and paragraph (a) are revised; paragraph (b) is removed;
paragraph (c) is redesignated as new paragraph (b); and newly
redesignated paragraph (b) introductory text, paragraphs (b)(1) and
(b)(3) are revised to read as follows:
Sec. 113.452 Erysipelothrix Rhusiopathiae Antibody.
Erysipelothrix Rhusiopathiae Antibody is a specific antibody
product containing antibodies directed against one or more somatic
antigens of Erysipelothrix rhusiopathiae. Each serial shall be tested
as provided in this section. Any serial found unsatisfactory by a
prescribed test shall not be released.
(a) Each serial shall meet the applicable general requirements
provided in Sec. 113.450.
(b) Potency test. Bulk or final container samples of completed
product from each serial shall be tested using the two-stage test
provided in this section.
(1) In the first stage, each of 40 Swiss mice, each weighing 16 to
20 grams, shall be injected subcutaneously with 0.1 ml of product
(dried product shall be rehydrated according to label directions).
Twenty-four hours postinjection, the injected mice and 10 additional
mice designated controls shall be challenged subcutaneously with the
same culture of Erysipelothrix rhusiopathiae.
* * * * *
(3) The mice injected with product shall be observed for 10 days
postchallenge and all deaths recorded.
[[Page 51777]]
The second stage shall be required when 7-10 of the mice injected with
product die in the first stage. The second stage shall be conducted in
a manner identical to the first stage.
* * * * *
Sec. 113.453 [Removed and Reserved]
6. Section 113.453 is removed and reserved.
7. In Sec. 113.454, the introductory text of the section and
paragraph (a) are revised; paragraph (b) is removed; paragraph (c) is
redesignated as new paragraph (b); and the introductory text of newly
designated paragraph (b) is revised to read as follows:
Sec. 113.454 Clostridium Perfringens Type C Antitoxin.
Clostridium Perfringens Type C Antitoxin is a specific antibody
product containing antibodies directed against the toxin of Clostridium
perfringens Type C. Each serial shall be tested as provided in this
section. Any serial found unsatisfactory by a prescribed test shall not
be released.
(a) Each serial shall meet the applicable general requirements
provided in Sec. 113.450.
(b) Potency test. Bulk or final container samples of completed
product from each serial shall be tested using the toxin-neutralization
test for Beta Antitoxin provided in this section. Dried products shall
be rehydrated according to label directions.
* * * * *
8. In Sec. 113.455, the introductory text of the section and
paragraph (a) are revised; paragraph (b) is removed; paragraph (c) is
redesignated as new paragraph (b); and the introductory text of newly
redesignated paragraph (b) is revised to read as follows:
Sec. 113.455 Clostridium Perfringens Type D Antitoxin.
Clostridium Perfringens Type D Antitoxin is a specific antibody
product containing antibodies directed against the toxin of Clostridium
perfringens Type D. Each serial shall be tested as provided in this
section. Any serial found unsatisfactory by a prescribed test shall not
be released.
(a) Each serial shall meet the applicable general requirements
provided in Sec. 113.450.
(b) Potency test. Bulk or final container samples of completed
product from each serial shall be tested using the toxin-neutralization
test for Epsilon Antitoxin provided in this section. Dried products
shall be rehydrated according to label directions.
* * * * * * *
Secs. 113.456 through 113.498 [Added and Reserved]
9. New Secs. 113.456 through 113.498 are added and reserved.
10. New Sec. 113.499 is added to read as follows:
Sec. 113.499 Products for treatment of failure of passive transfer.
A product for the treatment of failure of passive transfer (FPT)
shall contain a specified minimum quantity of IgG per dose and shall be
recommended for use only in neonates of the same species as that of
antibody origin. A product for oral administration shall not be
recommended for use in animals more than 24 hours of age, while one for
parenteral administration shall only be recommended for use in neonatal
animals. Each serial shall meet the applicable general requirements
provided in Sec. 113.450 and be tested for potency as provided in this
section. Any serial found unsatisfactory by a prescribed test shall not
be released.
(a) Qualification of an IgG Reference Product. An IgG Reference
Product (reference) shall be a serial of product that is manufactured
according to the filed Outline of Production, properly qualified, and
used to assess the potency of subsequent product serials, as described
in paragraph (c) below. The reference shall be qualified as follows:
(1) At least 20 newborn, colostrum-deprived animals of the species
for which the product is recommended shall be randomly selected.
(2) Blood samples shall be taken from each animal.
(3) Each animal shall be administered one dose of reference by the
recommended route and shall be observed for 24 hours.
(i) Any adverse reactions shall be recorded.
(ii) The dosage of reference administered to each animal shall be
in accordance with label directions. Label directions may indicate a
single dosage regardless of weight, in which case the animals in the
study shall be at or near the maximum weight for neonates of the
species.
(4) After 24 hours, blood samples shall be taken from each animal.
(5) Pretreatment and post treatment serum IgG concentrations shall
be concurrently determined for each animal using a radial
immunodiffusion (RID) method acceptable to APHIS and described in the
filed Outline of Production for the product.
(6) Concurrently, using the same method, five IgG measurements
shall be made on an IgG Species Standard supplied or approved by APHIS.
The IgG Species Standard shall be a preparation that contains IgG
specific for the species in question at a concentration acceptable to
APHIS.
(7) For an IgG Reference Product to be satisfactory, all animals
used to qualify the reference must remain free of unfavorable product-
related reactions and at least 90 percent of the paired serum samples
must reflect an increase in IgG concentration (posttreatment minus
pretreatment concentration) equal to or greater than the IgG
concentration of the IgG Species Standard.
(b) Antibody functionality. Prior to licensure, the prospective
licensee shall perform a neutralization study, or another type of study
acceptable to APHIS, to demonstrate functionality of product antibody.
(c) Potency. Bulk or final container samples of completed product
from each serial shall be tested for IgG content as provided in this
paragraph. Samples of the test serial and of an IgG Reference Product
established in accordance with paragraph (a) of this section shall be
concurrently tested for IgG content by the RID method referred to in
paragraph (a)(5) of this section. Five IgG measurements shall be made
on each. If the IgG level per dose of the test serial does not meet or
exceed that of the reference, one complete retest, involving five IgG
measurements on both the reference and two samples of the test serial,
may be conducted. If, upon retest, the average IgG level per dose of
the two samples of the test serial does not meet or exceed that of the
reference, or if a retest is not conducted, the serial is
unsatisfactory.
Done in Washington, DC, this 30th day of September 1996.
A. Strating,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-25501 Filed 10-3-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-25489 Radio Broadcasting Services; Salem and Cherokee Village, AR
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Page 51789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25489]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-4; RM-8733]
Radio Broadcasting Services; Salem and Cherokee Village, AR
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In response to a petition for rule mamking filed on behalf of
Bragg Broadcasting Corporation and KFCM, Inc., this document
substitutes Channel 265A for Channel 240A at Salem, Arkansas, and
modifies the license of Bragg Broadcasting Corporation for Station
KSAR(FM), as requested. Additionally, to accommodate the modification
at Salem, Channel 252A is substituted for Channel 265A at Cherokee
Village, and the license of KFCM, Inc. for Station KFCM(FM) is modified
accordingly, as requested. See 61 FR 4392, February 6, 1996.
Coordinates for Channel 265A at Salem, Arkansas, are 36-25-00 and 91-
48-00; coordinates for Channel 252A at Cherokee Village, Arkansas, are
36-16-29 and 91-30-18. With this action, the proceeding is terminated.
EFFECTIVE DATE: November 4, 1996.
FOR FURTHER INFORMATION CONTACT: Nancy Joyner, Mass Media Bureau, (202)
418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order, MM Docket No. 96-4, adopted September 13, 1996, and
released September 20, 1996. The full text of this Commission decision
is available for inspection and copying during normal business hours in
the FCC's Reference Center (Room 239), 1919 M Street, NW., Washington,
DC. The complete text of this decision may also be purchased from the
Commission's copy contractors, International Transcription Service,
Inc., (202) 857-3800, located at 1919 M Street, NW., Room 246, or 2100
M Street, NW., Suite 140, Washington, DC 20037.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Part 73 of title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--[AMENDED]
1. The authority citation for part 73 continues to read as follows:
Authority: Secs. 303, 48 Stat., as amended, 1082; 47 U.S.C. 154,
as amended.
Sec. 73.202 [Amended]
2. Section 73.202(b), the Table of FM Allotments under Arkansas, is
amended by removing Channel 265A and adding Channel 252A at Cherokee
Village.
3. Section 73.202(b), the Table of FM Allotments under Arkansas, is
amended by removing Channel 240A and adding Channel 265A at Salem.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-25489 Filed 10-3-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-25465 Clean Air Act Approval and Promulgation of PMINF10 State Implementation Plan for Colorado; Telluride; Revisions to the Maintenance Demonstration
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 51784-51787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25465]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CO48-1-7008a & CO-001-0005a; FRL-5607-6]
Clean Air Act Approval and Promulgation of PM10 State
Implementation Plan for Colorado; Telluride; Revisions to the
Maintenance Demonstration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA approves the State implementation plan (SIP) revisions for
Telluride as submitted by the Colorado Governor with a letter dated
April 22, 1996. The April 22, 1996 submittal now satisfies the State's
April 21, 1994 commitment to adopt additional control measures in
Telluride as necessary to demonstrate maintenance of the National
Ambient Air Quality Standards (NAAQS) through December 31, 1997, for
particulate matter with an aerodynamic diameter less than or equal to a
nominal 10 micrometers (PM10). Based on that commitment, EPA
conditionally approved the quantitative milestones element of the
Telluride PM10 SIP on September 19, 1994. The April 22, 1996
submittal incorporates new street sanding requirements and demonstrates
maintenance of the standard through 1997. EPA approves these revisions,
and therefore, converts its September 19, 1994 conditional approval to
a full approval.
DATES: This final rule will become effective on December 3, 1996 unless
adverse comments are received by November 4, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Copies of the State's submittal and other information are
available for inspection during normal business hours at the following
locations: Air Program, Environmental Protection Agency, Region VIII,
999 18th Street, suite 500, Denver, Colorado 80202-2405; Colorado
Department of Health, Air Pollution Control Division, 4300 Cherry Creek
Drive South, Denver, Colorado 80222-1530; and The Air and Radiation
Docket and Information Center, 401 M Street, SW, Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Amy Platt, 8P2-A, Environmental
Protection Agency, Region VIII, (303) 312-6449.
SUPPLEMENTARY INFORMATION:
I. Background
The Telluride, Colorado area was designated nonattainment for
PM10 and classified as moderate under sections 107(d)(4)(B) and
188(a) of the Clean Air Act, upon enactment of the Clean Air Act
Amendments of 1990.\1\ See 56 FR 56694 (Nov. 6, 1991), 40 CFR 81.306
(Telluride). The air quality planning requirements for moderate PM10
nonattainment areas are set out in subparts 1 and 4 of part D, title I
of the Act.\2\
---------------------------------------------------------------------------
\1\ The 1990 Amendments to the Clean Air Act made significant
changes to the Act. See Public Law No. 101-549, 104 Stat. 2399.
References herein are to the Clean Air Act, as amended (``the
Act''). The Clean Air Act is codified, as amended, in the U.S. Code
at 42 U.S.C. 7401, et seq.
\2\ Subpart 1 contains provisions applicable to nonattainment
areas generally and Subpart 4 contains provisions specifically
applicable to PM10 nonattainment areas. At times, Subpart 1 and
Subpart 4 overlap or conflict. EPA has attempted to clarify the
relationship among these provisions in the ``General Preamble'' and,
as appropriate, in today's notice and supporting information.
---------------------------------------------------------------------------
EPA has issued a ``General Preamble'' describing EPA's preliminary
views on how EPA intends to review SIPs and SIP revisions submitted
under title I of the Act, including those State submittals containing
moderate PM10 nonattainment area SIP requirements (see generally
57 FR 13498, April 16, 1992 and 57 FR 18070, April 28, 1992). Because
EPA is describing its interpretations here only in broad terms, the
reader should refer to the General Preamble for a more detailed
discussion of the interpretations of title I advanced in this proposal
and the supporting rationale.
Those States containing initial moderate PM10 nonattainment
areas (those areas designated under section 107(d)(4)(B) of the Act)
were required to submit, among other things, the following provisions
by November 15, 1991:
1. Provisions to assure that reasonably available control measures
(RACM) [including such reductions in emissions from existing sources in
the area as may be obtained through the adoption, at a minimum, of
reasonably available control technology (RACT)] shall be implemented no
later than December 10, 1993;
2. Either a demonstration (including air quality modelling) that
the plan will provide for attainment as expeditiously as practicable
but no later than December 31, 1994, or a demonstration that attainment
by that date is impracticable;
3. Quantitative milestones which are to be achieved every three
years and which demonstrate reasonable further progress (RFP) toward
attainment by December 31, 1994; and
4. Provisions to assure that the control requirements applicable to
major stationary sources of PM10 also apply to major stationary
sources of PM10 precursors except where the Administrator
determines that such sources do not contribute significantly to PM10
levels which exceed the NAAQS in the area. See sections 172(c), 188,
and 189 of the Act.
On September 19, 1994, EPA partially approved a March 1993
Telluride PM10 SIP submittal, including control measures,
technical analyses, and other Clean Air Act SIP requirements, with the
exception of the quantitative milestone element (see 59 FR 47807). EPA
conditionally approved the quantitative milestones element because the
SIP did not demonstrate maintenance of the PM10 NAAQS
[[Page 51785]]
through 1997, and therefore, it was deficient in meeting the second
quantitative milestone (November 15, 1994 through November 15, 1997).
II. This Action
Section 110(k) of the Act sets out provisions governing EPA's
review of SIP submittals (see 57 FR 13565-13566). The Governor of
Colorado submitted revisions to the SIP for Telluride with a letter
dated March 13, 1995. The revisions addressed additional control
measures necessary to demonstrate maintenance of the PM10 NAAQS.
The March 13, 1995 submittal inadvertently incorporated an
incorrect version of a street sanding regulation, i.e., a version
differing from what the State actually adopted. Therefore, the State
was required, through its administrative procedures, to re-notice, re-
hear, and re-adopt the Telluride SIP in order to correct its error. The
result is the April 22, 1996 submittal, which completely replaces the
March 13, 1995 submittal. Therefore, this action will be specific to
the April 22, 1996 submittal.
A. Analysis of State Submission
1. Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing.3 Section 110(l) of the Act similarly provides that
each revision to an implementation plan submitted by a State under the
Act must be adopted by such State after reasonable notice and public
hearing.
---------------------------------------------------------------------------
\3\ Also section 172(c)(7) of the Act requires that plan
provisions for nonattainment areas meet the applicable provisions of
section 110(a)(2).
---------------------------------------------------------------------------
EPA also must determine whether a submittal is complete and
therefore warrants further EPA review and action [see Section 110(k)(1)
and 57 FR 13565]. The EPA's completeness criteria for SIP submittals
are set out at 40 CFR part 51, appendix V. The EPA attempts to make
completeness determinations within 60 days of receiving a submission.
However, a submittal is deemed complete by operation of law if a
completeness determination is not made by EPA within six months after
receipt of the submission.
To entertain public comment, the State of Colorado, after providing
adequate notice, held a public hearing on August 17, 1995 to address
the Telluride PM10 SIP revision. Following the Colorado Air
Quality Control Commission (AQCC) public hearing, the AQCC adopted the
Telluride PM10 SIP revisions. The Governor of Colorado submitted
the Telluride SIP revisions to EPA with a letter dated April 22, 1996.
The SIP revisions were reviewed by EPA to determine completeness in
accordance with the completeness criteria set out at 40 CFR part 51,
appendix V. The submittal was found to be complete and a letter dated
July 12, 1996 was forwarded to the Governor indicating the completeness
of the submittal and the next steps in the review process.
2. Control Strategy
EPA approved the control measures in the Telluride moderate
PM10 nonattainment area SIP as satisfying the RACM (including
RACT) requirement on September 19, 1994 (59 FR 47807). The measures
targeted wood and coal burning. Please see that notice of final
rulemaking and associated Technical Support Document (TSD) for further
details on the specific control measures approved in the SIP.
The April 22, 1996 submittal included the addition of a new
emission control measure which outlines street sanding requirements. In
the Colorado Air Quality Control Commission State Implementation Plan-
Specific Regulation for Nonattainment Areas, adopted August 17, 1995
and effective October 30, 1995, section II.C. details street sanding
requirements for the Telluride area. Specifications for street sanding
include a 2% fines standard for all street sanding materials and
requirements for testing and reporting. In the following table, the
street sanding controls and associated emissions reductions are
outlined.
----------------------------------------------------------------------------------------------------------------
PM10 emissions
Source Control measure reduction from base Effective date
year
----------------------------------------------------------------------------------------------------------------
Re-entrained road dust........ Colorado Air Quality Control Commission ..................... 10/30/95
State Implementation Plan-Specific
Regulation for Nonattainment Areas,
Section II.C., Telluride Nonattainment
Area Street Sanding Requirements.
Requires that all street sanding 32% or 6550 pounds
materials equal or exceed a standard of fewer PM10 emissions/
less than 2% fines. day in 1997.
----------------------------------------------------------------------------------------------------------------
A more detailed discussion of the street sanding control measures
can be found in the TSD. EPA has reviewed the State's documentation and
concluded that it adequately justifies the emissions reduction credit
used in the State's maintenance demonstration. The implementation of
these measures, along with the control measures that were approved in
the moderate PM10 nonattainment area SIP for Telluride on
September 19, 1994 (59 FR 47807), will result in continued maintenance
of the PM10 NAAQS through December 31, 1997. EPA approves this
regulation for street sanding requirements as part of the control
strategy for the Telluride PM10 SIP as it is necessary for
continued maintenance of the PM10 NAAQS.
3. Emissions Budget
The emissions inventory for the Telluride PM10 nonattainment
area was approved by EPA in the September 19, 1994 Federal Register (59
FR 47807). The April 22, 1996 submittal included a paragraph to clearly
denote the emissions budgets for the Telluride nonattainment area,
which are to be used for Federal conformity purposes. The emissions
budgets are determined by subtracting the mobile-source related
emission reduction credits from the 1994 and 1997 mobile source
emissions inventories. Since the State does not have mobile-source
related emission reduction credits to be applied to the 1994 mobile
source emission inventory, the 1994 emissions budget is the same as the
1994 mobile source emissions inventory and remains unchanged from EPA's
September 19, 1994 approval at 16,901 lbs. of PM10/day. However,
with the addition of the street sanding measure described above and
being approved by EPA today, the 1997 budget is now established at
14,687 lbs. of PM10/day.
[[Page 51786]]
4. Revision to the Maintenance Demonstration (Including Air Quality
Modelling)
As noted, the initial moderate PM10 nonattainment areas were
required to submit a demonstration (including air quality modelling)
showing that the plan will provide for attainment as expeditiously as
practicable (see section 189(a)(1)(B) of the Act). The 24-hour
PM10 NAAQS is 150 micrograms/cubic meter (g/m\3\), and
the standard is attained when the expected number of days per calendar
year with a 24-hour average concentration above 150 g/m\3\ is
equal to or less than one (see 40 CFR 50.6). The annual PM10 NAAQS
is 50 g/m\3\, and the standard is attained when the expected
annual arithmetic mean concentration is less than or equal to 50
g/m\3\ (id.).
EPA approved Colorado's March 17, 1993 attainment demonstration for
the Telluride moderate PM10 nonattainment area on September 19,
1994 (59 FR 47807-47813). The 24-hour attainment value (i.e., the
ambient PM10 air quality levels achieved by December 31, 1994) was
142.7 g/m\3\. For a more detailed description of that
attainment demonstration and the related control strategies, see EPA's
September 19, 1994 final rulemaking (59 FR 47807) and the associated
TSD.
However, the March 1993 Telluride nonattainment area plan did not
show maintenance of the NAAQS through 1997. The 1997 24-hour PM10
concentration was predicted to be 180.1 g/m\3\, which is above
the 24-hour NAAQS of 150 g/m\3\. In the April 22, 1996
submittal, the maintenance demonstration was revised to include the
emissions reduction credit for the additional control measure involving
street sanding requirements.
With the revisions, the 24-hour maintenance value is 135.0
g/m\3\ (45.1 g/m\3\ lower than without the revision
and below the PM10 NAAQS). The revised demonstration shows that
the control strategies (approved on September 19, 1994 at 59 FR 47807),
along with the new street sanding requirements, are adequate to ensure
continued maintenance of the 24-hour PM10 NAAQS in Telluride
through the maintenance year of 1997.
The SIP now adequately demonstrates continued maintenance of the
PM10 NAAQS in Telluride. For a more detailed description of the
maintenance demonstration revisions, please see the TSD for this
document.
5. Technical Analyses
With the April 22, 1996 submittal, the Governor submitted the
emissions inventory and chemical mass balance analyses that EPA had
previously approved in its September 19, 1994 rulemaking action (59 FR
47807). Because EPA previously approved the Telluride emissions
inventory and chemical mass balance analyses, EPA is not acting on
these elements at this time.
6. Enforceability Issues
All measures and other elements in the SIP must be enforceable by
the State and EPA (see sections 172(c)(6), 110(a)(2)(A) and 57 FR
13556). The EPA criteria addressing the enforceability of SIPs and SIP
revisions were stated in a September 23, 1987 memorandum (with
attachments) from J. Craig Potter, Assistant Administrator for Air and
Radiation, et al. (see 57 FR 13541). Nonattainment area plan provisions
also must contain a program to provide for enforcement of control
measures and other elements in the SIP (see section 110(a)(2)(C)).
The specific control measures contained in this April 22, 1996
revision to the SIP are addressed above in Section II.A.3., ``Control
Strategy.'' The Colorado Air Quality Control Commission State
Implementation Plan-Specific Regulation for Nonattainment Areas,
Section II.C., Telluride Nonattainment Area Street Sanding
Requirements, became effective on October 30, 1995. This regulation
outlines street sanding requirements for all street sanding materials
used in the Telluride nonattainment area and details testing and
recordkeeping requirements. All street sanding material used within the
Telluride nonattainment area must equal or exceed a standard of less
than 2% fines. All materials will be tested to ensure compliance with
this standard, and the test results must be provided to the purchaser
upon delivery.
By June 1 of each year, beginning in 1997, each user of street
sanding materials must prepare and submit a report to the Division
which details (1) the total amount of sanding material (both new and
recycled) used; (2) the total amount of salt or other de-icing
chemicals used; (3) the number of lane miles typically sanded during
each deployment; and (4) the total number of deployment episodes. By
September 30 of each year, beginning in 1996, each user of street
sanding materials must prepare and submit a report to the Division
which provides a copy of all independent tests performed and the name
and address of all suppliers of street sanding material along with a
full description of the location of the supplier's aggregate pit from
which all material was supplied.
The State of Colorado has a program that will ensure that the
measures contained in the SIP are adequately enforced. The Colorado Air
Pollution Control Division (APCD) has the authority to implement and
enforce all control measures adopted by the AQCC. In addition, Colorado
statute provides that the APCD shall enforce against any ``person'' who
violates the emission control regulations of the AQCC, the requirements
of the SIP, or the requirements of any permit. The definition of
``person'' includes any ``municipal corporation, county, city and
county or other political subdivision of the State,'' such as the Town
of Telluride and San Miguel County. Civil penalties of up to $15,000
per day per violation are provided for in the State statute for any
person in violation of these requirements, and criminal penalties are
also provided for in the State statute.
Thus, EPA believes that the control measures contained in the SIP
revision for Telluride are enforceable and that the APCD has adequate
enforcement capabilities to ensure compliance with those control
measures. The TSD contains further information on enforceability
requirements and a discussion of the personnel and funding intended to
support effective implementation of the control measures.
III. Final Action
EPA is approving Colorado's SIP revision, submitted by the Governor
with a letter dated April 22, 1996, for the Telluride moderate
PM10 nonattainment area. This submittal addressed revisions to the
maintenance demonstration to incorporate emissions reductions credit
for the new street sanding requirements. The SIP now adequately
demonstrates continued maintenance of the PM10 NAAQS in Telluride
through 1997; therefore, EPA converts its September 19, 1994
conditional approval (59 FR 47807) to a full approval.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective December 3, 1996 unless, by November 4, 1996, adverse or
critical comments are received.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent notice that will withdraw
[[Page 51787]]
the final action. All public comments received will be addressed in a
subsequent final rule based on this action serving as a proposed rule.
EPA will not institute a second comment period on this action. Any
parties interested in commenting on this action should do so at this
time. If no such comments are received, the public is advised that this
action will be effective on December 3, 1996.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to a SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
IV. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-State relationship
under the Act, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The Clean Air Act forbids EPA to base its actions concerning
SIPs on such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246,
256-66 (1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action proposes to
approve pre-existing requirements under State or local law, and imposes
no new Federal requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of this rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 3, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Dated: August 29, 1996.
Patricia D. Hull,
Acting Regional Administrator.
40 CFR Part 52 is amended as follows:
1. The authority citation for part 52 continues to read as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.320 is amended by adding paragraph (c)(75) to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(75) The Governor of Colorado submitted revisions to the PM10
moderate nonattainment area State Implementation Plan (SIP) for
Telluride, Colorado with a letter dated April 22, 1996. The submittal
was made to satisfy the State's commitment to adopt additional control
measures necessary to demonstrate continued maintenance of the
PM10 National Ambient Air Quality Standards through 1997. Due to
the satisfaction of this commitment, the SIP now adequately meets the
quantitative milestone requirement.
(i) Incorporation by reference.
(A) Colorado Air Quality Control Commission State Implementation
Plan-Specific Regulation for Nonattainment Areas, 5 CCR 1001-20,
Section II.C., Telluride Nonattainment Area Street Sanding
Requirements, adopted August 17, 1995 and effective October 30, 1995.
[FR Doc. 96-25465 Filed 10-3-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-25464 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Ocean Perch in the Eastern Gulf of Alaska
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 51789-51790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25464]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 960129018-6018-01; I.D. 093096A]
Fisheries of the Exclusive Economic Zone Off Alaska; Pacific
Ocean Perch in the Eastern Gulf of Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
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SUMMARY: NMFS is prohibiting retention of Pacific ocean perch in the
Eastern Regulatory Area of the Gulf of Alaska (GOA). NMFS is requiring
that catches of Pacific ocean perch in this area be treated in the same
manner as prohibited species and discarded at sea with a minimum of
injury. This action is necessary because the Pacific ocean perch total
allowable catch (TAC) in the Eastern Regulatory Area of the GOA has
been reached.
EFFECTIVE DATE: 1200 hrs, Alaska local time (A.l.t.), September 30,
1996, until 2400 hrs, A.l.t., December 31, 1996.
[[Page 51790]]
FOR FURTHER INFORMATION CONTACT: Thomas Pearson, 907-486-6919.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the GOA exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North
Pacific Fishery Management Council under authority of the Magnuson
Fishery Conservation and Management Act. Fishing by U.S. vessels is
governed by regulations implementing the FMP at subpart H of 50 CFR
part 600 and 50 CFR part 679.
In accordance with Sec. 679.20(c)(3)(ii), the TAC for Pacific ocean
perch in the Eastern Regulatory Area of the GOA was established by the
Final 1996 Harvest Specifications of Groundfish (61 FR 4304, February
5, 1996), as 2,366 metric tons.
The Director, Alaska Region, NMFS, has determined, in accordance
with Sec. 679.20(d)(2), that the TAC for Pacific ocean perch in the
Eastern Regulatory Area of the GOA has been reached. Therefore, NMFS is
requiring that further catches of Pacific ocean perch in the Eastern
Regulatory Area of the GOA be treated as prohibited species in
accordance with Sec. 679.21(b).
Classification
This action is taken under 50 CFR 679.20 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: September 30, 1996.
Gary C. Matlock,
Director, Office of Sustainable Fisheries, National Marine Fisheries
Service.
[FR Doc. 96-25464 Filed 10-1-96; 9:05 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-25439 Removal of Regulations
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 51783-51784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25439]
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DEPARTMENT OF EDUCATION
34 CFR Parts 614, 617, 619, and 641
Removal of Regulations
AGENCY: Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the Code of Federal Regulations (CFR) to
remove unnecessary regulations. The regulations removed are 34 CFR
parts 614 (College Facilities Loan Program), 617 (Financial Assistance
for Construction, Reconstruction, or Renovation of Higher Education
Facilities), 619 (Grants for Construction, Reconstruction, and
Renovation of Graduate Academic Facilities), and 641 (Faculty
Development Fellowship Program). As a result of absence of funding and
review in accordance with the President's regulatory reinvention
initiative, the Secretary has determined that these regulations are no
longer needed. However, the removal of these regulations does not alter
the obligations of current recipients of federal funds. The regulations
in effect when a grant or other agreement is made govern that grant or
agreement, unless otherwise specifically provided.
EFFECTIVE DATE: Parts 614, 617, 619, and 641 are removed effective
October 4, 1996.
FOR FURTHER INFORMATION CONTACT: Kenneth C. Depew, U.S. Department of
Education, Room 5112, FB-10, 600 Independence Avenue, SW, Washington,
DC 20202-2241. Telephone: (202) 401-8300. Individuals who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8
p.m., Eastern time, Monday through Friday.
SUPPLEMENTARY INFORMATION: President Clinton's memorandum of March 4,
1995, titled ``Regulatory Reinvention Initiative,'' directed heads of
departments and agencies to review all existing regulations to
eliminate those that are outdated and modify others to increase
flexibility and reduce burden. The Department has undertaken a thorough
review of its existing regulations and has identified the regulations
removed by this document as unnecessary. Additional obsolete and
unnecessary regulations were previously removed on May 23, 1995 (60 FR
27223); April 29, 1996 (61 FR 18680); and June 25, 1996 (61 FR 32656)
as part of the Regulatory Reinvention Initiative.
The regulations being removed are no longer necessary because they
were issued to implement programs that are no longer funded. The
Department is continuing to review its other existing regulations
thoroughly in consultation with its customers and partners. To the
extent the Secretary can identify further opportunities for regulatory
reinvention, the Secretary will propose appropriate amendments to
revise or eliminate outdated provisions, reduce burden, and increase
flexibility.
Waiver of Proposed Rulemaking
In accordance with the Administrative Procedure Act (5 U.S.C. 553),
it is the practice of the Secretary to offer interested parties the
opportunity to comment on proposed regulations. However, this document
merely removes obsolete regulations from the Code of Federal
Regulations. Removal of the regulations does not establish or affect
substantive policy. Therefore, the Secretary has determined, pursuant
to 5 U.S.C. 553(b)(B), that public comment is unnecessary and contrary
to the public interest. For the same reasons the Secretary waives the
30-day delayed effective date in 5 U.S.C. 553(d).
Paperwork Reduction Act of 1995
These regulations have been examined under the Paperwork Reduction
Act of 1980 and have been found to contain no information collection
requirements.
[[Page 51784]]
Assessment of Educational Impact
Based on its own review, the Department has determined that the
regulations in this document do not require transmission of information
that is being gathered by or is available from any other agency or
authority of the United States.
List of Subjects
34 CFR Part 614
Colleges and universities, Grant programs--education.
34 CFR Part 617
Colleges and universities, Grant programs--education.
34 CFR Part 619
Colleges and universities, Grant programs--education.
34 CFR Part 641
Colleges and universities, Grant programs--education, Scholarships
and fellowships, Teachers.
Dated: September 30, 1996.
David A. Longanecker,
Assistant Secretary for Postsecondary Education.
(Catalog of Federal Domestic Assistance numbers do not apply.)
PARTS 614, 617, 619, AND 641--[REMOVED]
For reasons stated in the preamble, under the authority at 20
U.S.C. 1221e-3, the Secretary amends Title 34 of the Code of Federal
Regulations by removing Parts 614, 617, 619, and 641.
[FR Doc. 96-25439 Filed 10-3-96; 8:45 am]
BILLING CODE 4000-01-P
Complete official Federal Register PDF
FR Doc. 96-25428 Grants for Nurse Practitioner and Nurse Midwifery Programs
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 51787-51788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25428]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Public Health Service
42 CFR Part 57
RIN 0906-AA40
Grants for Nurse Practitioner and Nurse Midwifery Programs
AGENCY: Health Resources and Services Administration, HHS.
[[Page 51788]]
ACTION: Final regulation.
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SUMMARY: This final rule revises the existing regulations governing the
program for Grants for Nurse Practitioner and Nurse Midwifery Programs
authorized by section 822(a) of the Public Health Service Act (the
Act), to make a technical change by deleting a program requirement for
projects to collect and evaluate certain data. The specified data are
no longer needed by the Department.
EFFECTIVE DATE: These regulations are effective October 4, 1996.
FOR FURTHER INFORMATION CONTACT: Jennifer Burks, Chief, Planning,
Evaluation, and Legislation Branch, Office of Research and Planning,
Bureau of Health Professions, Health Resources and Services
Administration, room 8-67, Parklawn Building, 5600 Fishers Lane,
Rockville, Maryland 20857; telephone: (301) 443-1590.
SUPPLEMENTARY INFORMATION: This final rule amends the existing
regulations for the Grants for Nurse Practitioner and Nurse Midwifery
Programs, governed by section 822(a) of the Public Health Service Act
(42 U.S.C. 296m) to remove an existing requirement in Sec. 57.2405
which is no longer needed by the Department.
Section 57.2405(c) currently requires collection and evaluation of
program data for the following:
(1) Systematic evaluation by faculty and students of the program
curriculum in relation to the purposes, objectives, and conceptual
framework of the program.
(2) Evaluation of the effectiveness of the program in relation to
its purposes and objectives.
(3) Information concerning the number of student applicants and
students enrolled, student characteristics (such as age, sex, race,
education background, and previous work experience including type of
position, speciality, and work setting), and student performance in
classroom work and clinical practice.
(4) Information concerning the number of graduates per class, the
attrition rate, characteristics of graduates (such as age, sex, race,
educational background, and previous work experience, including type of
position, speciality, and work setting), employment after graduation
(including setting and location) and utilization and performance of
graduates (including employer assessment.)
The Paperwork Reduction Act of 1995 states in 44 U.S.C.
3506(c)(1)(A)(I) that with respect to the collection of information and
the control of paperwork, each agency shall ``review each collection of
information before submission to the Director for review under this
chapter, including (I) an evaluation of the need for the collection of
information; . . .''. The movement of these programs from certificate
level (housed in a variety of entities) to masters level programs
(housed in universities) no longer requires the collection of data
listed in Sec. 57.2405(c)(1), (c)(3), and (c)(4) to assure quality.
Both university approval systems and accreditations criteria now assure
minimal quality requirements. Therefore, we are revising paragraph (c)
to remove these data elements from the regulations.
Justification for Omitting Notice of Proposed Rulemaking
Since this amendment is of a technical nature, the Secretary has
determined, pursuant to 5 U.S.C. 553 and departmental policy, that it
is unnecessary and impractical to follow proposed rulemaking procedures
or to delay the effective date of this regulation.
Economic Impact
Executive Order 12866 requires that all regulations reflect
consideration of alternative, of costs, of benefits, of incentives, of
equity, and of available information. Regulations must meet certain
standards, such as avoiding unnecessary burden. Regulations which are
``significant'' because of costs, adverse effects on the economy,
inconsistency with other agency actions, effects on the budget, or
novel legal or policy issues, require special analysis.
The Department believes that the resources required to implement
the requirement in this final rule is minimal. This rule removes a
project requirement for collecting specific data which removes an added
burden on small entities. Therefore, in accordance with the Regulatory
Flexibility Act of 1980 (RFA), and the Small Business Regulatory
Enforcement Fairness Act of 1996 which amended the RFA, the Secretary
certifies that these regulations will not have a significant impact on
a substantial number of small entities. For the same reasons, the
Secretary has also determined that this is not a ``significant'' rule
under Executive Order 12866.
Paperwork Reduction Act of 1980
This final rule removes a reporting requirement for program
projects which is currently approved by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act of 1995 under assigned
control number 0915-0060. The reporting requirements for data
collection in Sec. 57.2405(c)(1), (c)(3), and (c)(4) are no longer
useful for program purposes. These requirements will be removed from
this clearance package at its next renewal.
List of Subjects under 42 CFR Part 57
Aged, Dental health, Education of the disadvantaged, Educational
facilities, Educational study programs, Grant programs--education,
Grant programs--health, Health facilities, Health professions, Loan
programs--health, Medical and dental schools, Student aid, Reporting
and recordkeeping requirements, Scholarships and fellowships.
(Catalog of Federal Domestic Assistance, No. 93.298, Grants for
Nurse Practitioner, Nurse Midwifery Program)
Approved: September 30, 1996.
Ciro V. Sumaya,
Administrator, Health Resources and Services Administration.
Accordingly, 42 CFR part 57, subpart Y is amended to read as set
forth below:
PART 57--GRANTS FOR CONSTRUCTION OF TEACHING FACILITIES,
EDUCATIONAL IMPROVEMENTS, SCHOLARSHIPS AND STUDENT LOANS
Subpart Y--Grants for Nurse Practitioner and Nurse Midwifery Programs
1. The authority for subpart Y continues to read as follows:
Authority: Sec. 215 of the Public Health Service Act, 58 Stat.
690, as amended, 63 Stat. 35 (42 U.S.C. 216); sec. 822(a) of the
Public Health Service Act, 89 Stat. 361, as amended by 99 Stat. 394-
395 and 548 (42 U.S.C. 296m).
2. Section 57.2405 is amended by revising paragraph (c) to read as
follows:
Sec. 57.2405 Project requirements.
* * * * *
(c) In accordance with the plan set forth in its approved
application, the project shall evaluate the effectiveness of the
program in relation to its purposes and objectives.
* * * * *
[FR Doc. 96-25428 Filed 10-3-96; 8:45 am]
BILLING CODE 4160-15-P
Complete official Federal Register PDF
FR Doc. 96-25421 Removal of the Prohibition Against Certain Flights Within the Territory and Airspace of Iran
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Page 51782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25421]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. 28690; Special Federal Aviation Regulation (SFAR) No. 76]
RIN 2120-AG-28
Removal of the Prohibition Against Certain Flights Within the
Territory and Airspace of Iran
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; removal.
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SUMMARY: This action removes Special Federal Aviation Regulation (SFAR)
No. 76, which prohibits flight operations within the territory and
airspace of Iran by any United States air carrier or commercial
operator, by any person exercising the privileges of an airman
certificate issued by the FAA except persons operating U.S.-registered
aircraft for foreign air carriers, or by an operator using an aircraft
registered in the United States unless the operator of such aircraft is
a foreign air carrier. This action is taken in response to the decrease
in certain military operations in northwest Iran, including the removal
of equipment from a missile site near the Iran-Turkey border, which has
reduced the threat of hostile actions against persons and aircraft
engaged in flight operations within Iran's territory and airspace.
DATES: Effective Date: September 27, 1996.
FOR FURTHER INFORMATION CONTACT:
Mark W. Bury, International Affairs and Legal Policy Staff, AGC-7,
Office of the Chief Counsel, Federal Aviation Administration, 800
Independence Avenue, SW., Washington, D.C. 20591. Telephone: (202) 267-
3515. Any person may obtain a copy of this document by submitting a
request to the Federal Aviation Administration, Office of Rulemaking,
Attention: ARM-1, 800 Independence Avenue, SW., Washington, D.C. 20591,
or by calling (202) 267-9677. Communications must identify the number
of this SFAR. Persons interested in being placed on a mailing list for
future rules should also request a copy of Advisory Circular No. 11-2A,
which describes the application procedure.
SUPPLEMENTARY INFORMATION: On September 17, 1996, the FAA issued a
final rule prohibiting certain aircraft operations within the territory
and airspace of Iran. In the exercise of its statutory responsibility
for the safety of U.S.-registered aircraft and U.S. operators, the FAA
determined that an I-HAWK surface-to-air missile site established by
Iran in close proximity to civilian air corridors near the Iran-Turkey
border posed a threat to civil aviation, and therefore justified the
imposition of certain measures to ensure the safety of U.S.-registered
aircraft and operators conducting flight operations within Iran's
territory and airspace. SFAR 76 prohibits flight operations within the
territory and airspace of Iran by any United States air carrier or
commercial operator, by any person exercising the privileges of an
airman certificate issued by the FAA except persons operating U.S.-
registered aircraft for foreign air carriers, or by an operator using
an aircraft registered in the United States unless the operator of such
aircraft is a foreign air carrier.
The FAA has determined that the threat to civil aviation posed by
the I-HAWK surface-to-air missile site and related military operations
has ended. The I-HAWK missile equipment has been removed and the
related military operations terminated. There now appears to be no
continuing threat to civil aviation arising out of, or related to,
Iranian military operations in that area.
On the basis of the foregoing information, I have determined that
the immediate removal of SFAR 76 from 14 CFR Part 91 is appropriate.
The Department of State has been advised of, and has no objection to,
the action taken herein.
List of Subjects in 14 CFR Part 91
Air traffic control, Aircraft, Airmen, Airports, Aviation safety,
Freight, Iran.
The Amendment
For the reasons set forth above, the Federal Aviation
Administration amends 14 CFR Part 91 by removing SFAR 76 as follows:
PART 91--GENERAL OPERATING AND FLIGHT RULES
1. The authority citation for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120, 44101, 44111,
44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306,
46315, 46316, 46502, 46504, 46506-46507, 47122, 47508, 47528-47531.
2. Special Federal Aviation Regulation No. 76 is removed.
Issued in Washington, DC, on September 27, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-25421 Filed 9-30-96; 3:15 pm]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-25301 Consolidated HUD Hearing Procedures for Civil Rights Matters
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 52216-52229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25301]
[[Page 52215]]
_______________________________________________________________________
Part VI
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
24 CFR Part 1, et al.
Consolidated HUD Hearing Procedures for Civil Rights Matters; Final
Rule
Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Rules
and Regulations
[[Page 52216]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Parts 1, 2, 8, 103, 104, 146, and 180
[Docket No. FR-4077-F-01]
RIN 2501-AC27
Consolidated HUD Hearing Procedures for Civil Rights Matters
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule consolidates HUD's hearing procedures for
nondiscrimination and equal opportunity matters in a new 24 CFR part
180. Currently, the hearing procedures established under the various
civil rights statutory authorities are described in different parts of
title 24. The consolidation of these procedures will eliminate
redundancy from title 24, present uniformity, and assist in HUD's
efforts to streamline the contents of its regulations. Additionally,
this final rule makes appropriate adjustments in stated penalty amounts
pursuant to the Debt Collection Improvement Act of 1996.
EFFECTIVE DATE: November 4, 1996.
FOR FURTHER INFORMATION CONTACT: Carole W. Wilson, Associate General
Counsel for Litigation and Fair Housing Enforcement, or Harry L. Carey,
Assistant General Counsel for Fair Housing Enforcement, Department of
Housing and Urban Development, 451 Seventh Street, SW, Room 10270,
Washington, DC 20410, telephone number (202) 708-0570 (this number is
not toll-free). Hearing- or speech-impaired persons may access this
number via TTY by calling the toll-free Federal Information Relay
Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
A. Consolidating HUD's Civil Rights Hearing Procedures
On March 4, 1995, President Clinton issued a memorandum to all
Federal departments and agencies regarding regulatory reinvention. In
response to this memorandum, HUD conducted a page-by-page review of its
regulations to determine which could be eliminated, consolidated, or
otherwise improved. As a result of this review, HUD has decided to
streamline its regulations governing the hearing procedures for civil
rights matters.
Currently, the procedures for administrative hearings under the
various statutory civil rights authorities are described in different
parts of title 24. For example, HUD's regulations governing
administrative proceedings under the Fair Housing Act (42 U.S.C. 3601-
3619) are found at 24 CFR part 104. The HUD regulations describing the
hearing procedures under title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d-1) and the Age Discrimination Act of 1975 (42 U.S.C. 6103)
are located at 24 CFR part 2. The procedures for hearings under section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) are found at 24
CFR part 8.
Many of these regulations contain nearly identical provisions. In
order to eliminate redundancy from title 24 of the Code of Federal
Regulations, HUD is consolidating its civil rights hearing procedures
in a new 24 CFR part 180. The establishment of a uniform set of hearing
procedures will also assist in reducing confusion among HUD program
participants, who in the past were faced with separate implementing HUD
regulations for each civil rights statutory authority. This final rule
also assists participants in HUD programs by making several clarifying,
non-substantive, revisions to the existing civil rights hearing
procedures. On April 23, 1996 (61 FR 18026), HUD published a rule for
public comment proposing to consolidate many of its non-civil rights
hearing procedures in 24 CFR part 26. The rule finalizing the April 23,
1996 proposed rule was published on September 24, 1996 (61 FR 50208),
and takes effect on October 24, 1996.
New 24 CFR part 180 extends to all nondiscrimination hearings many
procedures that previously were found only in the regulations governing
hearings under the Fair Housing Act. In the seven years since HUD
published 24 CFR part 104 (54 FR 3298, January 23, 1989), these
procedures have assisted parties in obtaining equitable resolutions to
complaints of unlawful discrimination. Because of this success, 24 CFR
part 180 adopts many of these procedures for use in administrative
hearings under other civil rights authorities. For instance,
Sec. 180.445 incorporates the settlement judge process that was
developed by HUD's administrative law judges to resolve cases without
the need for hearings. This rule also requires the parties to exchange
exhibits and lists of witnesses prior to a hearing (See Secs. 180.440
and 180.645).
B. Changes to Title 24
In addition to establishing new part 180, this final rule makes
several necessary conforming amendments to HUD's regulations in title
24. For example, 24 CFR part 2 (Practice and Procedure for Hearings
Under Title VI of the Civil Rights Act of 1964) and 24 CFR part 104
(Administrative Proceedings Under Section 812 of the Fair Housing Act),
are rendered obsolete by the consolidated hearing procedures in new
part 180. Accordingly, the final rule removes these parts from title
24. This rule also amends the following HUD regulations to remove any
provisions describing nondiscrimination hearing procedures and to
reference new 24 CFR part 180:
1. 24 CFR part 1 (Nondiscrimination in Federally Assisted Programs
of the Department of Housing and Urban Development--Effectuation of
Title VI of the Civil Rights Act of 1964);
2. 24 CFR part 8 (Nondiscrimination Based On Handicap in Federally
assisted Programs and Activities of the Department of Housing and Urban
Development);
3. 24 CFR part 103 (Fair Housing--Complaint Processing); and
4. 24 CFR part 146 (Nondiscrimination on the Basis of Age in HUD
Programs or Activities Receiving Federal Financial Assistance).
C. The Debt Collection Improvement Act of 1996
Pursuant to the Federal Civil Penalties Inflation Adjustment Act of
1990 (28 U.S.C. 2461 note; Pub. L. 101-410, approved October 5, 1990;
104 Stat. 890), as amended by the Debt Collection Improvement Act of
1996 (31 U.S.C. 3701 note; Pub. L. 104-134, approved April 26, 1996;
110 Stat. 1321-358), each Federal agency is required to issue
regulations adjusting for inflation the maximum civil money penalties
that can be imposed pursuant to such agency's statutes. This final rule
adjusts the penalty amounts formerly described in Sec. 104.910 and set
forth in Sec. 180.607 of this final rule.
II. Justification for Final Rulemaking
In accordance with its own regulations on rulemaking in 24 CFR part
10, HUD generally publishes a rule for public comment before issuing a
rule for effect. However, part 10 provides an exception to the public
comment requirement if the agency finds good cause to omit advance
notice and public participation. The good cause requirement is
satisfied when public comment is ``impracticable, unnecessary, or
contrary to the public interest'' (24 CFR 10.1). HUD finds that in this
case it is unnecessary to solicit public comment prior to publication
of the rule for effect.
[[Page 52217]]
This final rule consolidates HUD's regulations governing
nondiscrimination hearing procedures in a new 24 CFR part 180.
Currently, the administrative hearing procedures under the various
civil rights statutory authorities are described in different parts of
title 24. Many of these regulations contain nearly identical
provisions. Consolidation of these requirements in a single part will
eliminate redundancy, streamline the content of title 24, and establish
uniformity. Although this final rule makes several clarifying revisions
to the existing nondiscrimination hearing procedures, it does not
affect or establish substantive policy.
This rule also amends the maximum penalty amounts which may be
imposed pursuant to a nondiscrimination hearing. These amendments are
mandated by Debt Collection Improvement Act of 1996. Accordingly, it is
unnecessary for HUD to solicit public comment on the adjustments to the
penalty amounts.
III. Findings and Certifications
Executive Order 12866, Regulatory Planning and Review
This final rule was reviewed by the Office of Management and Budget
under Executive Order 12866, Regulatory Planning and Review. Any
changes made to the final rule as a result of that review are clearly
identified in the docket file, which is available for public inspection
in the office of the Department's Rules Docket Clerk, Room 10276, 451
Seventh Street, SW, Washington, DC 20410-0500.
Unfunded Mandates Reform Act
The Secretary has reviewed this rule before publication and by
approving it certifies, in accordance with the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1532), that this rule does not impose a Federal
mandate that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this final rule, and in so
doing certifies that this rule will not have a significant economic
impact on a substantial number of small entities. As part of HUD's
continuing efforts to implement the President's regulatory reform
initiative, and to eliminate redundancy from title 24, this rule
consolidates HUD's nondiscrimination hearing procedures. This final
rule establishes a new 24 CFR part 180 which sets forth a uniform set
of hearing procedures for civil rights matters. The rule will have no
adverse or disproportionate economic impact on small entities.
Environmental Impact
In accordance with 40 CFR 1508.4 of the regulations of the Council
on Environmental Quality and 24 CFR 50.20(k) of HUD regulations, the
policies and procedures contained in this rule relate only to hearing
procedures and administrative law decisions, which do not constitute
development decisions and do not affect the physical condition of a
project area or building site. Therefore, this rule categorically is
excluded from the requirements of the National Environmental Policy
Act.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this rule
will not have substantial direct effects on States or their political
subdivisions, or the relationship between the Federal government and
the States, or on the distribution of power and responsibilities among
the various levels of government. This final rule merely consolidates
HUD's nondiscrimination hearing procedures. No programmatic or policy
changes will result from this rule that would affect the relationship
between the Federal Government and State and local governments.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule will not have
the potential for significant impact on family formation, maintenance,
or general well-being, and thus is not subject to review under the
Order. This final rule eliminates redundancy from title 24 by
consolidating HUD's nondiscrimination hearing procedures in a new 24
CFR part 180. No significant change in existing HUD policies or
programs will result from promulgation of this rule.
List of Subjects
24 CFR Part 1
Administrative practice and procedure, Civil rights, Reporting and
recordkeeping requirements.
24 CFR Part 2
Administrative practice and procedure, Civil rights.
24 CFR Part 103
Administrative practice and procedure, Aged, Fair housing,
Individuals with disabilities, Intergovernmental relations,
Investigations, Mortgages, Penalties, Reporting and recordkeeping
requirements.
24 CFR Part 104
Administrative practice and procedure, Aged, Fair housing,
Individuals with disabilities, Mortgages, Penalties.
24 CFR Part 146
Administrative practice and procedure, Aged, Civil rights, Grant
programs--housing and community development, Loan programs--housing and
community development, Reporting and recordkeeping requirements.
24 CFR Part 180
Administrative practice and procedure, Aged, Civil rights, Fair
housing, Individuals with disabilities, Intergovernmental relations,
Investigations, Mortgages, penalties, Reporting and recordkeeping
requirements.
Accordingly, title 24 of the Code of Federal Regulations is amended
as follows:
PART 1--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT--EFFECTUATION OF TITLE
VI OF THE CIVIL RIGHTS ACT OF 1964
1. The authority citation for 24 CFR part 1 is revised to read as
follows:
Authority: 42 U.S.C. 2000d-1 and 3535(d).
2. Section 1.9 is amended by revising paragraph (b) and removing
paragraph (c), (d), and (e), to read as follows:
Sec. 1.9 Hearings.
* * * * *
(b) Hearing procedures. Hearings shall be conducted in accordance
with 24 CFR part 180.
Secs. 1.10,1.11 [Removed]
3. Sections 1.10 and 1.11 are removed.
Sec. 1.112 [Redesignated as Sec. 1.10]
4. Section 1.12 is redesignated as Sec. 1.10.
PART 2--[REMOVED]
5. Under the authority of 42 U.S.C. 3535(d), Part 2 is removed.
[[Page 52218]]
PART 8--NONDISCRIMINATION BASED ON HANDICAP IN FEDERALLY ASSISTED
PROGRAMS AND ACTIVITIES OF THE DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT
6. The authority citation for part 8 is revised to read as follows:
Authority: 29 U.S.C. 794; 42 U.S.C. 3535(d) and 5309.
7. Section 8.58 is amended by revising paragraph (b) and by
removing paragraphs (c), (d), and (e), to read as follows:
Sec. 8.58 Hearings.
* * * * *
(b) Hearing procedures. Hearings shall be conducted in accordance
with 24 CFR part 180.
8. Section 8.59 and subpart E, consisting of Secs. 8.60 through
8.71, are removed.
PART 103--FAIR HOUSING--COMPLAINT PROCESSING
9. The authority citation for 24 CFR part 103 continues to read as
follows:
Authority: 42 U.S.C. 3601-19; 42 U.S.C. 3535(d).
Secs. 103.45, 103.50, 103.100, 103.115, 103.215, 103.330, 103.405,
103.410, 103.500 [Amended]
10. Sections 103.45, 103.50, 103.100, 103.115, 103.215, 103.330,
103.405, 103.410, 103.500 are amended by replacing all references to
``part 104'' with ``part 180.''
PART 104--[REMOVED]
11. Under the authority of 42 U.S.C. 3535(d), Part 104 is removed.
PART 146--NONDISCRIMINATION ON THE BASIS OF AGE IN HUD PROGRAMS OR
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
12. The authority citation for 24 CFR part 146 is revised to read
as follows:
Authority: 42 U.S.C. 3535(d) and 6103.
13. Section 146.43 is revised to read as follows:
Sec. 146.43 Hearings, decisions, post-termination proceedings.
The provisions of 24 CFR part 180 apply to HUD enforcement of this
part.
14. A new part 180 is added to read as follows:
PART 180--HEARING PROCEDURES FOR CIVIL RIGHTS MATTERS
Subpart A--General Information
Sec.
180.100 Definitions.
180.105 Scope of rules.
Subpart B--Administrative Law Judge
180.200 Designation.
180.205 Authority.
180.210 Withdrawal or disqualification of ALJ.
180.215 Ex Parte communications.
180.220 Separation of functions.
Subpart C--Parties
180.300 Rights of parties.
180.305 Representation.
180.310 Parties.
180.315 Standards of conduct.
Subpart D--Proceedings Prior to Hearing
180.400 Service and filing.
180.405 Time computations.
180.410 Charges under the Fair Housing Act.
180.415 Notice of proposed adverse action regarding Federal
financial assistance in Non-Fair Housing Act matters.
180.420 Answer.
180.425 Amendments to pleadings.
180.430 Motions.
180.435 Prehearing statements.
180.440 Prehearing conferences.
180.445 Settlement negotiations before a settlement judge.
180.450 Resolution of charge or notice of proposed adverse action.
Subpart E--Discovery
180.500 Discovery.
180.505 Supplementation of responses.
180.510 Interrogatories.
180.515 Depositions.
180.520 Use of deposition at hearings.
180.525 Requests for production of documents or things for
inspection or other purposes, including physical and mental
examinations.
180.530 Requests for admissions.
180.535 Protective orders.
180.540 Motion to compel discovery.
180.545 Subpoenas.
Subpart F--Procedures at Hearing
180.600 Date and place of hearing.
180.605 Conduct of hearings.
180.610 Waiver of right to appear.
180.615 Failure of party to appear.
180.620 Evidence.
180.625 Record of hearing.
180.630 Stipulations.
180.635 Written testimony.
180.640 In camera and protective orders.
180.645 Exhibits.
180.650 Public document items.
180.655 Witnesses.
180.660 Closing of record.
180.665 Arguments and briefs.
180.670 Initial decision of ALJ.
180.675 Petitions for review.
180.680 Final decisions.
Subpart G--Post-Final Decision in Fair Housing Cases
180.700 Action upon issuance of a final decision in Fair Housing
Act cases.
180.705 Attorney's fees and costs.
180.710 Judicial review of final decision.
180.715 Enforcement of final decision.
Subpart H--Post-Final Decision in Non-Fair Housing Act Matters
180.800 Post-termination proceedings.
180.805 Judicial review of final decision.
Authority: 29 U.S.C. 794; 42 U.S.C. 2000d-1 3535(d), 3601-3619;
5301-5320, and 6103.
Subpart A--General Information
Sec. 180.100 Definitions.
As used in this part:
(a) The terms ALJ, Department, Fair Housing Act, General Counsel,
and HUD are defined in 24 CFR part 5, subpart A.
(b) The terms Aggrieved Person, Assistant Secretary, Attorney
General, Discriminatory Housing Practice, Person, and State are defined
in 24 CFR part 103, subpart A.
(c) Agency has the same meaning as HUD.
Applicant and Application have the meanings provided in 24 CFR 1.2
or 24 CFR 8.3, as applicable.
Charge means the statement of facts issued under 24 CFR 103.405
upon which HUD has found reasonable cause to believe that a
discriminatory housing practice has occurred or is about to occur.
Chief Docket Clerk is the docket clerk for HUD's Office of ALJs,
409 Third Street, SW, Suite 320, Washington, DC 20024. Telephone
numbers are (202) 708-5004 and FAX (202) 708-5014.
Complaint means a complaint filed under the statutes covered by
this part.
Complainant means the person (including the Assistant Secretary)
who filed a complaint under the statutes covered by this part.
Fair Housing Act matters refers to proceedings under this part
pursuant to the Fair Housing Act and the implementing regulations at 24
CFR parts 100 and 103.
Federal financial assistance has the meaning provided in 24 CFR
1.2, 24 CFR 8.3, or 24 CFR 146.7, as applicable.
Hearing means a trial-type proceeding that involves the submission
of evidence, either by oral presentation or written submission, and
briefs and oral arguments on the evidence and applicable law.
Intervenor is a person entitled by law or permitted by the ALJ to
participate as a party.
Non-Fair Housing Act matters refers to proceedings under this part
pursuant to:
(1) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-1)
and the
[[Page 52219]]
implementing regulations at 24 CFR part 1;
(2) Section 504 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 794) and the implementing regulations at 24 CFR part 8; or
(3) The Age Discrimination Act of 1975 (42 U.S.C. 6103) and the
implementing regulations at 24 CFR part 146.
Notice of Proposed Adverse Action is the statement of facts issued
pursuant to a non-Fair Housing Act matter upon which HUD has found
reason to terminate or refuse to grant or continue Federal financial
assistance.
Party is a person who has full participation rights in a proceeding
under this part.
Prevailing party has the same meaning as the term has in section
722 of the Revised Statutes of the United States (42 U.S.C. 1988).
Recipient has the meaning provided in 24 CFR 1.2, 24 CFR 8.3, or 24
CFR 146.7, as applicable.
Respondent means the person accused of violating one of the
statutes covered by this part, including a recipient.
Secretary means the Secretary of HUD, or to the extent of any
delegation of authority by the Secretary to act under any of the
statutory authorities listed in Sec. 180.105(a), any other HUD official
to whom the Secretary may hereafter delegate such authority.
Sec. 180.105 Scope of rules.
(a) This part contains the rules of practice and procedure
applicable to administrative proceedings before an ALJ under the
following authorities:
(1) The Fair Housing Act (42 U.S.C. 3601-3619) and the implementing
regulations at 24 CFR parts 100 and 103, where no election to proceed
in federal district court has been made;
(2) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-1),
and the implementing regulations at 24 CFR part 1;
(3) Section 504 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 794), and the implementing regulations at 24 CFR part 8; and
(4) The Age Discrimination Act of 1975 (42 U.S.C. 6103), and the
implementing regulations at 24 CFR part 146.
(b) In the absence of a specific provision, the Federal Rules of
Civil Procedure shall serve as a general guide.
(c) Hearings under this part shall be conducted as expeditiously
and inexpensively as possible, consistent with the needs and rights of
the parties to obtain a fair hearing and a complete record.
(d) Except to the extent that a waiver would otherwise be contrary
to law, the ALJ may, after adequate notice to all interested persons,
modify or waive any of the rules in this part upon a determination that
no person will be prejudiced and that the ends of justice will be
served.
(e) All pleadings, correspondence, exhibits, transcripts of
testimony, exceptions, briefs, decisions, and other documents filed in
any proceeding may be inspected in the Chief Docket Clerk's office
during regular business hours.
Subpart B--Administrative Law Judge
Sec. 180.200 Designation.
Proceedings under this part shall be presided over by an ALJ
appointed under 5 U.S.C. 3105. HUD's Chief ALJ shall designate the
presiding ALJ.
Sec. 180.205 Authority.
The ALJ shall have all powers necessary to conduct fair,
expeditious and impartial hearings, including the power to:
(a) Administer oaths and affirmations and examine witnesses;
(b) Rule on offers of proof and receive evidence;
(c) Take depositions or have depositions taken when the ends of
justice would be served;
(d) Regulate the course of the hearing and the conduct of persons
at the hearing;
(e) Hold conferences for the settlement or simplification of the
issues by consent of the parties;
(f) Rule on motions, procedural requests, and similar matters;
(g) Make and issue initial decisions;
(h) Impose appropriate sanctions against any person failing to obey
an order, refusing to adhere to reasonable standards of orderly and
ethical conduct, or refusing to act in good faith;
(i) Issue subpoenas if authorized by law; and
(j) Exercise any other powers necessary and appropriate for the
purpose and conduct of the proceeding as authorized by the rules in
this part or in conformance with statute, including 5 U.S.C. 551-59.
Sec. 180.210 Withdrawal or disqualification of ALJ.
(a) Disqualification. If an ALJ finds that there is a basis for
his/her disqualification in a proceeding, the ALJ shall withdraw from
the proceeding. Withdrawal is accomplished by entering a notice in the
record and providing a copy of the notice to the Chief ALJ.
(b) Motion for recusal. If a party believes that the presiding ALJ
should be disqualified for any reason, the party may file a motion to
recuse with the ALJ. The motion shall be supported by an affidavit
setting forth the alleged grounds for disqualification. The ALJ shall
rule on the motion, stating the grounds therefor.
(c) Redesignation of ALJ. If an ALJ is disqualified, the Chief ALJ
shall designate another ALJ to preside over further proceedings.
Sec. 180.215 Ex Parte communications.
(a) An ex parte communication is any direct or indirect
communication concerning the merits of a pending proceeding, made by a
party in the absence of any other party, to the presiding ALJ, and
which was neither on the record nor on reasonable prior notice to all
parties. Ex parte communications do not include communications made for
the sole purpose of scheduling hearings, requesting extensions of time,
or requesting information on the status of cases.
(b) Ex parte communications are prohibited.
(c) If the ALJ receives an ex parte communication that the ALJ
knows or has reason to believe is prohibited, the ALJ shall promptly
place the communication, or a written statement of the substance of the
communication, in the record and shall furnish copies to all parties.
Unauthorized communications shall not be taken into consideration in
deciding any matter in issue. Any party making a prohibited ex parte
communication may be subject to sanctions including, but not limited
to, exclusion from the proceeding and an adverse ruling on the issue
that is the subject of the prohibited communication.
Sec. 180.220 Separation of functions.
No officer, employee, or agent of the Federal Government engaged in
the performance of investigative, conciliatory, or prosecutorial
functions in connection with the proceeding shall, in that proceeding
or any factually related proceeding under this part, participate or
advise in the decision of the ALJ, except as a witness or counsel
during the proceedings or in its appellate review.
Subpart C--Parties
Sec. 180.300 Rights of parties.
Each party may appear in person, be represented by counsel, examine
or cross-examine witnesses, introduce documentary or other relevant
evidence into the record and, in Fair Housing Act matters, request the
issuance of subpoenas.
[[Page 52220]]
Sec. 180.305 Representation.
(a) HUD is represented by the General Counsel.
(b) Any party may appear on his/her/its own behalf or by an
attorney. Each party or attorney shall file a notice of appearance. The
notice must identify the matter before the ALJ, the party on whose
behalf the appearance is made, and the mailing address and telephone
number of the person appearing. Similar notice shall also be given for
any withdrawal of appearance.
(c) An attorney must be admitted to practice before a Federal Court
or the highest court in any State. The attorney's representation that
he/she is in good standing before any of these courts is sufficient
evidence of the attorney's qualifications under this section, unless
otherwise ordered by the ALJ.
Sec. 180.310 Parties.
(a) Parties to proceedings under this part are HUD, the
respondent(s), and any intervenor(s). Respondents include persons named
as such in a charge issued under 24 CFR part 103, and recipients/
applicants named as respondents in hearing notices issued under 24 CFR
parts 1, 8, or 146 and notices of proposed adverse action under this
part.
(b) An aggrieved person is not a party but may file a motion to
intervene. Requests for intervention shall be filed within 50 days
after the filing of the charge; however, the ALJ may allow intervention
beyond that time. An intervenor's right to participate as a party may
be restricted by order of the ALJ pursuant to statute, the rules in
this part or other applicable law. Intervention shall be permitted if
the person requesting intervention is
(1) The aggrieved person on whose behalf the charge is issued; or
(2) An aggrieved person who claims an interest in the property or
transaction that is the subject of the charge and the disposition of
the charge may, as a practical matter, impair or impede this person's
ability to protect that interest, unless the aggrieved person is
adequately represented by the existing parties.
(c) A complainant in a non-Fair Housing Act matter is not a party
but may file a motion to become an amicus curiae.
(d) Any person may file a petition to participate in a proceeding
under this part as an amicus curiae. An amicus curiae is not a party to
the proceeding and may not introduce evidence at the hearing.
(1) A petition to participate as amicus curiae shall be filed
before the commencement of the hearing, unless the petitioner shows
good cause for filing the petition later. The petition may be granted
if the ALJ finds that the petitioner has a legitimate interest in the
proceedings, and that such participation will not unduly delay the
outcome and may contribute materially to the proper disposition
thereof.
(2) The amicus curiae may submit briefs within time limits set by
the ALJ or by the Secretary in the event of an appeal to the Secretary.
(3) When all parties have completed their initial examination of a
witness, the amicus curiae may request the ALJ to propound specific
questions to the witness. Any such request may be granted if the ALJ
believes the proposed additional testimony may assist materially in
elucidating factual matters at issue between the parties and will not
expand the issues.
Sec. 180.315 Standards of conduct.
(a) All persons appearing in proceedings under this part shall act
with integrity and in an ethical manner.
(b) The ALJ may exclude parties or their representatives for
refusal to comply with directions, continued use of dilatory tactics,
refusal to adhere to reasonable standards of orderly and ethical
conduct, failure to act in good faith, or violations of the
prohibitions against ex parte communications. If an ALJ suspends or
bars an attorney from participating in a proceeding, the ALJ shall
include in the record the reasons for such action. An attorney who is
suspended or barred from participation may appeal to the Chief ALJ. The
proceeding will not be delayed or suspended pending disposition on the
appeal, except that the ALJ shall suspend the proceeding for a
reasonable time to enable the party to obtain another attorney.
Subpart D--Proceedings Prior to Hearing
Sec. 180.400 Service and filing.
(a) Service--(1) Service by the Office of ALJs. The Office of ALJs
shall serve all notices, orders, decisions and other such documents by
mail to each party and amicus curiae at the last known address.
(2) Service by others. A copy of each filed document shall be
served on each party and each amicus curiae. Service shall be made upon
counsel if a party is represented by counsel. Service on counsel shall
constitute service on the party. Service may be made to the last known
address by first-class mail or other more expeditious means, such as:
(i) Hand delivery to the person to be served or a person of
suitable age and discretion at the place of business, residence, or
usual place of abode of the person to be served;
(ii) Overnight delivery; or
(iii) Facsimile transmission or electronic means. The ALJ may place
appropriate limits on service by facsimile transmission or electronic
means.
(3) Certificate of service. Every document served shall be
accompanied by a certificate of service containing a statement as to
the date of service, the method of service, the parties served and the
address at which they were served, which is signed and dated by the
person making service.
(b) Filing--(1) Method. All documents shall be filed with the Chief
Docket Clerk. Filing may be by first class mail, delivery, facsimile
transmission, or electronic means; however, the ALJ may place
appropriate limits on filing by facsimile transmission or electronic
means.
(2) Form. Every pleading, motion, brief, or other document shall
contain a caption setting forth the title of the proceeding, the docket
number assigned by the Office of ALJs, and the designation of the type
of document (e.g., charge, motion).
(3) Signature. Every document filed by a party shall be signed by
the party or the party's attorney and must include the signer's address
and telephone number. The signature constitutes a certification that:
the signer has read the document; to the best of the signer's
knowledge, information and belief, the statements made therein are
true; and the document is not interposed for delay.
Sec. 180.405 Time computations.
(a) In computing time under this part, the time period begins the
day following the act, event, or default and includes the last day of
the period, unless the last day is a Saturday, Sunday, or legal holiday
observed by the Federal Government, in which case the time period
includes the next business day.
(b) Modification of time periods. Except for time periods required
by statute, the ALJ may enlarge or reduce any time period required
under this part where necessary to avoid prejudicing the public
interest or the rights of the parties. Requests for extension of time
should set forth the reasons for the request.
(c) Entry of orders. In computing any time period involving the
date of the ALJ's issuance of an order or decision, the date of
issuance is the date of service by the Chief Docket Clerk.
[[Page 52221]]
(d) Computation of time for delivery by mail. When documents are
filed by mail, three days shall be added to the prescribed time period
for filing any responsive pleading. Documents are not filed until
received by the Chief Docket Clerk.
(e) Untimely filing. The ALJ may refuse to consider any motion or
other document that is not filed in a timely fashion.
Sec. 180.410 Charges under the Fair Housing Act.
(a) Filing and service. Within three days after the issuance of a
charge, the General Counsel shall file the charge with the Chief Docket
Clerk and serve copies (with the additional information required under
paragraph (b) of this section) on all respondents and aggrieved
persons.
(b) Contents. The charge shall consist of a short and plain written
statement of the facts upon which reasonable cause has been found to
believe that a discriminatory housing practice has occurred or is about
to occur. A notification shall be served with the charge containing the
following information:
(1) Any complainant, respondent, or aggrieved person may elect to
have the claims asserted in the charge decided in a civil action under
42 U.S.C. 3612(o), in lieu of an administrative proceeding under this
part.
(2) Such election must be made not later than 20 days after receipt
of service of the charge by serving written notice of such on the Chief
Docket Clerk, each respondent, each aggrieved person on whose behalf
the charge was issued, the Assistant Secretary, and the General
Counsel.
(3) If no person timely elects to have the claims asserted in the
charge decided in a civil action under 42 U.S.C. 3612(o), an
administrative proceeding will be conducted under this part.
(4) If an administrative hearing is conducted:
(i) The hearing will be held at a date and place specified.
(ii) The respondent will have an opportunity to file an answer to
the charge within 30 days after service of the charge.
(iii) The aggrieved person may participate as a party to the
administrative proceeding by filing a request for intervention within
50 days after service of the charge.
(iv) All discovery must be concluded 15 days before the date set
for hearing.
(v) The rules in this part will govern the proceeding.
(5) If, at any time following service of the charge on the
respondent, the respondent intends to enter into a contract, sale,
encumbrance, or lease with any person regarding the property that is
the subject of the charge, the respondent must provide a copy of the
charge to such person before the respondent and the person enter into
the contract, sale, encumbrance or lease.
(c) Election of judicial determination. If the complainant, the
respondent, or the aggrieved person on whose behalf a complaint was
filed makes a timely election to have the claims asserted in the charge
decided in a civil action under 42 U.S.C. 3612(o), the Chief ALJ shall
dismiss the administrative proceeding.
(d) Effect of a civil action on administrative proceeding. An ALJ
may not continue an administrative proceeding under the Fair Housing
Act after the beginning of the trial of a civil action commenced by the
aggrieved person under an act of Congress or a State law seeking relief
with respect to that discriminatory housing practice. If such a trial
is commenced, the ALJ shall dismiss the administrative proceeding. The
commencement and maintenance of a civil action for appropriate
temporary or preliminary relief under 42 U.S.C. 3610(e) or 42 U.S.C.
3613 does not affect administrative proceedings under this part.
Sec. 180.415 Notice of proposed adverse action regarding Federal
financial assistance in Non-Fair Housing Act matters.
(a) Filing and service. Within 10 days after a recipient/applicant
has requested a hearing, as provided for in 24 CFR part 1, 8, or 146,
the General Counsel shall file a notice of proposed adverse action with
the Chief Docket Clerk and serve copies (with the additional
information required under paragraph (b) of this section) on all
respondents and complainants.
(b) Contents. The notice of proposed adverse action shall consist
of a short and plain written statement of the facts and legal authority
upon which the proposed action is based. A notification shall be served
with the notice containing the following information:
(1) That an administrative hearing will be held at a date and place
specified.
(2) That the respondent will have an opportunity to file an answer
to the notice of adverse action within 30 days after its service.
(3) That the complainant may participate as an amicus curiae by
filing a timely request to do so.
(4) That discovery must be concluded by a date specified.
(5) That the rules specified in this part shall govern the
proceeding.
(c) Consolidation. The ALJ may provide for non-Fair Housing Act
proceedings at HUD to be joined or consolidated for hearing with
proceedings in other Federal departments or agencies, by agreement with
such other departments or agencies. All parties to any proceeding
consolidated subsequent to service of the notice of proposed adverse
action shall be promptly served with notice of such consolidation.
Sec. 180.420 Answer.
(a) Within 30 days after service of the charge or notice of
proposed adverse action, a respondent may file an answer. The answer
shall include:
(1) A statement that the respondent admits, denies, or does not
have and is unable to obtain sufficient information to admit or deny,
each allegation made. A statement of lack of information shall have the
effect of a denial. Any allegation that is not denied shall be deemed
to be admitted.
(2) A statement of each affirmative defense and a statement of
facts supporting each affirmative defense.
(b) Failure to file an answer within the 30-day period following
service of the charge or notice of proposed adverse action shall be
deemed an admission of all matters of fact recited therein and may
result in the entry of a default decision.
Sec. 180.425 Amendments to pleadings.
(a) By right. HUD may amend the charge or notice of proposed
adverse action once as a matter of right prior to the filing of the
answer.
(b) By leave. Upon such conditions as are necessary to avoid
prejudicing the public interest and the rights of the parties, the ALJ
may allow amendments to pleadings upon a motion of a party.
(c) Conformance to the evidence. When issues not raised by the
pleadings are reasonably within the scope of the original charge or
notice of proposed adverse action and have been tried by the express or
implied consent of the parties, the issues shall be treated in all
respects as if they had been raised in the pleadings, and amendments
may be made as necessary to make the pleading conform to evidence.
(d) Supplemental pleadings. The ALJ may, upon reasonable notice,
permit supplemental pleadings concerning transactions, occurrences or
events that have happened or been discovered since the date of the
pleadings and which are relevant to any of the issues involved.
Sec. 180.430 Motions.
(a) Motions. Any application for an order or other request shall be
made by
[[Page 52222]]
a motion which, unless made during an appearance before the ALJ, shall
be in writing and shall state the specific relief requested and the
basis therefor. Motions made during an appearance before the ALJ shall
be stated orally and made a part of the transcript. All parties shall
be given a reasonable opportunity to respond to written or oral motions
or requests.
(b) Responses to written motions. Within seven calendar days after
a written motion is served, any party to the proceeding may file a
response in support of, or in opposition to, the motion. Unless
otherwise ordered by the ALJ, no further responsive documents may be
filed. Failure to file a response within the response period
constitutes a waiver of any objection to the granting of the motion.
(c) Oral argument. The ALJ may order oral argument on any motion.
Sec. 180.435 Prehearing statements.
(a) Before the commencement of the hearing, the ALJ may direct the
parties to file prehearing statements.
(b) The prehearing statement must state the name of the party
presenting the statement and, unless otherwise directed by the ALJ,
briefly set forth the following:
(1) The issues involved in the proceeding;
(2) The facts stipulated by the parties and a statement that the
parties have made a good faith effort to stipulate to the greatest
extent possible;
(3) The facts in dispute;
(4) The witnesses (together with a summary of the testimony
expected) and exhibits to be presented at the hearing;
(5) A brief statement of applicable law;
(6) Conclusions to be drawn;
(7) Estimated time required for presentation of the party's case;
and
(8) Such other information as may assist in the disposition of the
proceeding.
Sec. 180.440 Prehearing conferences.
(a) Before the commencement of or during the course of the hearing,
the ALJ may direct the parties to participate in a conference to
expedite the hearing. Failure to attend a conference may constitute a
waiver of all objections to the agreements reached at the conference
and to any order with respect thereto.
(b) During the conference, the ALJ may dispose of any procedural
matters on which he/she is authorized to rule. At the conference, the
following matters may be considered:
(1) Pre-trial motions;
(2) Identification, simplification and clarification of the issues;
(3) Necessary amendments to the pleadings;
(4) Stipulations of fact and of the authenticity, accuracy, and
admissibility of documents;
(5) Limitations on the number of witnesses;
(6) Negotiation, compromise, or settlement of issues;
(7) The exchange of proposed exhibits and witness lists;
(8) Matters of which official notice will be requested;
(9) Scheduling actions discussed at the conference; and
(10) Such other matters as may assist in the disposition of the
proceeding.
(c) Conferences may be conducted by telephone or in person, but
generally shall be conducted by telephone, unless the ALJ determines
that this method is inappropriate. The ALJ shall give reasonable notice
of the time, place and manner of the conference.
(d) Record of conference. Unless otherwise directed by the ALJ, the
conference will not be stenographically recorded. The ALJ will reduce
the actions taken at the conference to a written order or, if the
conference takes place less than seven days before the beginning of the
hearing, may make a statement at the hearing and on the record
summarizing the actions taken at the conference.
Sec. 180.445 Settlement negotiations before a settlement judge.
(a) Appointment of settlement judge. The ALJ, upon the motion of a
party or upon his or her own motion, may request the Chief ALJ to
appoint another ALJ to conduct settlement negotiations. The order
appointing the settlement judge may confine the scope of settlement
negotiations to specified issues. The order shall direct the settlement
judge to report to the Chief ALJ within specified time periods.
(b) Duties of settlement judge. (1) The settlement judge shall
convene and preside over conferences and settlement negotiations
between the parties and assess the practicalities of a potential
settlement.
(2) The settlement judge shall report to the Chief ALJ describing
the status of the settlement negotiations, evaluating settlement
prospects, and recommending the termination or continuation of the
settlement negotiations.
(c) Termination of settlement negotiations. Settlement negotiations
shall terminate upon the order of the chief ALJ issued after
consultation with the settlement judge. The conduct of settlement
negotiations shall not unduly delay the commencement of the hearing.
Sec. 180.450 Resolution of charge or notice of proposed adverse
action.
At any time before a final decision is issued, the parties may
submit to the ALJ an agreement resolving the charge or notice of
proposed adverse action. A charge under the Fair Housing Act can only
be resolved with the agreement of the aggrieved person on whose behalf
the charge was issued. If the agreement is in the public interest, the
ALJ shall accept it by issuing an initial decision and consent order
based on the agreement.
Subpart E--Discovery
Sec. 180.500 Discovery.
(a) In general. This subpart governs discovery in aid of
administrative proceedings under this part. Discovery in Fair Housing
Act matters shall be completed 15 days before the date scheduled for
hearing or at such time as the ALJ shall direct. Discovery in non-Fair
Housing Act matters shall be completed as the ALJ directs.
(b) Scope. The parties are encouraged to engage in voluntary
discovery procedures. Discovery shall be conducted as expeditiously and
inexpensively as possible, consistent with the needs of all parties to
obtain relevant evidence. Unless otherwise ordered by the ALJ, the
parties may obtain discovery regarding any matter, not privileged, that
is relevant to the subject matter involved in the proceeding, including
the existence, description, nature, custody, condition, and location of
documents or persons having knowledge of any discoverable matter. It is
not grounds for objection that information sought will be inadmissible
if the information appears reasonably calculated to lead to the
discovery of admissible evidence.
(c) Methods. Parties may obtain discovery by one or more of the
following methods:
(1) Deposition upon oral examination or written questions.
(2) Written interrogatories.
(3) Requests for the production of documents or other evidence for
inspection and other purposes.
(4) Requests for admissions.
(5) Upon motion of a party, the presiding ALJ may issue an order
requiring a physical or mental examination of a party or of a person in
the custody or under the legal control of a party.
(d) Frequency and sequence. Unless otherwise ordered by the ALJ or
restricted by this subpart, the frequency
[[Page 52223]]
or sequence of these methods is not limited.
(e) Non-intervening aggrieved person. For purposes of obtaining
discovery from a non-intervening aggrieved person, the term party as
used in this subpart includes the aggrieved person.
Sec. 180.505 Supplementation of responses.
A party is under a duty, in a timely fashion, to:
(a) Supplement a response with respect to any question directly
addressed to:
(1) The identity and location of persons having knowledge of
discoverable matters; and
(2) The identity of each person expected to be called as an expert
witness, the subject matter on which the expert witness is expected to
testify, and the substance of the testimony.
(b) Amend a response if the party later obtains information upon
the basis of which:
(1) The party knows the response was incorrect when made, or
(2) The party knows the response, though correct when made, is no
longer true, and the circumstances are such that a failure to amend the
response is, in substance, a knowing concealment.
(c) Supplement other responses, as imposed by order of the ALJ or
by agreement of the parties.
Sec. 180.510 Interrogatories.
(a) Any party may serve on any other party written interrogatories
to be answered by the party served. If the party served is a public or
private corporation, a partnership, an association, or a governmental
agency, the interrogatories may be answered by any authorized officer
or agent who shall furnish such information as may be available to the
party. A party may serve not more than 30 written interrogatories on
another party without an order of the ALJ.
(b) Each interrogatory shall be answered separately and fully in
writing under oath or affirmation, unless it is objected to, in which
event, the reasons for the objection shall be stated in lieu of an
answer. The answers shall be signed by the person making them, and the
objections may be signed by the attorney or other representative making
them. The answers and objections shall be served within 15 days after
service of the interrogatories.
(c) It is a sufficient answer to an interrogatory to specify the
records from which the answer may be derived or ascertained if:
(1) The answer to the interrogatory may be derived or ascertained
from the records of the party on whom the interrogatory has been served
or from an examination, audit or inspection of such records, or from a
compilation, abstract or summary based thereon, and
(2) The burden of deriving or ascertaining the answer is
substantially the same for the party serving the interrogatory as the
party served. The party serving the interrogatory shall be afforded
reasonable opportunity to examine, audit or inspect such records and to
make copies, compilations, abstracts or summaries. The specification
shall include sufficient detail to permit the interrogating party to
locate and identify the individual records from which the answer may be
ascertained.
(d) Objections to the form of written interrogatories are waived
unless served in writing upon the party propounding the
interrogatories.
Sec. 180.515 Depositions.
(a) Notice. Upon written notice to the witness and to all other
parties, a party may take the testimony of a witness by deposition and
may request the production of specified documents or materials by the
witness at the deposition. Notice of the taking of a deposition shall
be given not less than five days before the deposition is scheduled.
The notice shall state:
(1) The purpose and general scope of the deposition;
(2) The time and place of the deposition;
(3) The name and address of the person before whom the deposition
is to be taken;
(4) The name and address of the witness; and
(5) A specification of the documents and materials that the witness
is requested to produce.
(b) Deposition of an organization. If the deposition of a public or
private corporation, partnership, association, or governmental agency
is sought, the organization so named shall designate one or more
officers, directors or agents to testify on its behalf, and may set
forth, for each person designated, the matters on which he/she will
testify.
(c) Procedure at deposition. Depositions may be taken before any
disinterested person having power to administer oaths in the location
where the deposition is to be taken. Each deponent shall be placed
under oath or affirmation, and the other parties will have the right to
cross-examine. The deponent may have counsel present during the
deposition. The questions propounded and all answers and objections
thereto shall be reduced to writing, read by or to and subscribed by
the witness, and certified by the person before whom the deposition was
taken. Non-intervening aggrieved persons may be present at depositions
in which they are not the deponent.
(d) Motion to terminate or limit examination. During the taking of
a deposition, a party or the witness may request suspension of the
deposition on the grounds of bad faith in the conduct of the
examination, oppression of the witness or party, or improper
questioning or conduct. Upon request for suspension, the deposition
will be adjourned. The objecting party or witness must immediately move
the ALJ for a ruling on the objection. The ALJ may then limit the scope
or manner of taking the deposition.
(e) Waiver of deposing officer's disqualification. Objection to
taking a deposition because of the disqualification of the officer
before whom it is taken is waived unless made before the taking of the
deposition begins or as soon thereafter as the disqualification becomes
known or could have been discovered with reasonable diligence.
(f) Payment of costs of deposition. The party requesting the
deposition shall bear all costs of the deposition.
Sec. 180.520 Use of deposition at hearings.
(a) In general. At the hearing, any part or all of a deposition, so
far as admissible under the Federal Rules of Evidence, may be used
against any party who was present or represented at the taking of the
deposition or who had due notice of the taking of the deposition, in
accordance with the following provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of an expert witness may be used by any party
for any purpose, unless the ALJ rules that such use is unfair or in
violation of due process.
(3) The deposition of a party, or of anyone who at the time of the
taking of the deposition was an officer, director, or duly authorized
agent of a public or private corporation, partnership, or association
that is a party, may be used by any other party for any purpose.
(4) The deposition of a witness, whether or not a party, may be
used by any party for any purpose if the ALJ finds:
(i) That the witness is dead;
(ii) That the witness is out of the United States or more than 100
miles from the place of hearing, unless it appears that the absence of
the witness was procured by the party offering the deposition;
[[Page 52224]]
(iii) That the witness is unable to attend to testify because of
age, sickness, infirmity, or imprisonment;
(iv) That the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or
(v) Whenever exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open
hearing, to allow the deposition to be used.
(5) If a part of a deposition is offered in evidence by a party,
any other party may require the party to introduce all of the
deposition that is relevant to the part introduced. Any party may
introduce any other part of the deposition.
(6) Substitution of parties does not affect the right to use
depositions previously taken. If a proceeding has been dismissed and
another proceeding involving the same subject matter is later brought
between the same parties or their representatives or successors in
interest, all depositions lawfully taken in the former proceeding may
be used in the latter proceeding.
(b) Objections to admissibility. Except as provided in this
paragraph, objection may be made at the hearing to receiving in
evidence any deposition or part of a deposition for any reason that
would require the exclusion of the evidence if the witness were present
and testifying.
(1) Objections to the competency of a witness or to the competency,
relevancy, or materiality of testimony are not waived by failure to
make them before or during the taking of the deposition, unless the
basis of the objection is one which might have been obviated or removed
if presented at that time.
(2) Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of parties, and
errors of any kind which might be obviated, removed or cured if
promptly presented, are waived unless reasonable objection is made at
the taking of the deposition.
Sec. 180.525 Requests for production of documents or things for
inspection or other purposes, including physical and mental
examinations.
(a) Any party may serve on any other party a request to:
(1) Produce and/or permit the party, or a person acting on the
party's behalf, to inspect and copy any designated documents, or to
inspect and copy, test, or sample any tangible things that contain or
may lead to relevant information and that are in the possession,
custody, or control of the party upon whom the request is served.
(2) Permit entry upon designated land or other property in the
possession or control of the party upon whom the request is served for
the purpose of inspection and measuring, photographing, testing, or
other purposes stated in paragraph (a)(1) of this section.
(b) Each request shall set forth with reasonable particularity the
items or categories to be inspected and shall specify a reasonable
time, place and manner for making the inspection and performing the
related acts.
(c) Within 15 days after service of the request, the party upon
whom the request is served shall serve a written response on the party
submitting the request. The response shall state, with regard to each
item or category, that inspection and related activities will be
permitted as requested, unless there are objections, in which case the
reasons for the objection shall be stated.
(d) Upon motion of any party, when the mental or physical condition
(including the blood group) of a party or of a person in the custody or
under the legal control of a party, is in controversy, the presiding
ALJ may order the party to submit to a physical or mental examination
by a suitably licensed or certified examiner or to produce for
examination the person in the party's custody or legal control. The
order may be made only on motion for good cause shown and upon notice
to the person to be examined and to all parties and shall specify the
time, place, manner, conditions, and scope of the examination and the
person or persons by whom it is to be made. A report of the examiner
shall be made in accordance with Rule 35(b) of the Federal Rules of
Civil Procedure.
Sec. 180.530 Requests for admissions.
(a) Any party may serve on any other party a written request for
the admission of the truth of any matters relevant to the adjudication
set forth in the request that relate to statements or opinions of fact
or of application of law to fact, including the genuineness and
authenticity of any documents described in or attached to the request.
(b) Each matter for which an admission is requested is admitted
unless, within 15 days after service of the request, or within such
time as the ALJ allows, the party to whom the request is directed
serves on the requesting party a sworn written answer which:
(1) Specifically denies, in whole or in part, the matter for which
an admission is requested;
(2) Sets forth in detail why the party cannot truthfully admit or
deny the matter; or
(3) States an objection that the matter is privileged, irrelevant
or otherwise improper in whole or in part.
(c) An answering party may not give lack of information or
knowledge as a reason for failure to admit or deny, unless he/she/it
states that he/she/it has made a reasonable inquiry and that the
information known to, or readily obtainable by, him/her/it is
insufficient to enable the party to admit or deny.
(d) The party requesting admissions may move for a determination of
the sufficiency of the answers or objections. Unless the ALJ determines
that an objection is justified, the ALJ shall order that an answer be
served. If the ALJ determines that an answer does not comply with the
requirements of this section, the ALJ may order either that the matter
is admitted or that an amended answer be served.
(e) Any matter admitted under this section is conclusively
established unless, upon the motion of a party, the ALJ permits the
withdrawal or amendment of the admission. Any admission made under this
section is made for the purposes of the pending proceeding only, is not
an admission by the party for any other purpose, and may not be used
against the party in any other proceeding.
Sec. 180.535 Protective orders.
(a) Upon motion of a party or a person from whom discovery is
sought or in accordance with Sec. 180.540(c), and for good cause shown,
the ALJ may make appropriate orders to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense as a
result of the requested discovery request. The order may direct that:
(1) The discovery may not be had;
(2) The discovery may be had only on specified terms and
conditions, including at a designated time and place;
(3) The discovery may be had by a method of discovery other than
that selected by the party seeking discovery;
(4) Certain matters may not be the subject of discovery, or the
scope of discovery may be limited to certain matters;
(5) Discovery may be conducted with no one present other than
persons designated by the ALJ;
(6) A trade secret or other confidential research, development or
commercial information may not be disclosed, or
[[Page 52225]]
may be disclosed only in a designated way; or
(7) The party or other person from whom discovery is sought may
file specified documents or information under seal to be opened as
directed by the ALJ.
(b) The ALJ may permit a party or other person from whom discovery
is sought, who is seeking a protective order, to make all or part of
the showing of good cause in camera. If such a showing is made, upon
motion of the party or other person from whom discovery is sought, an
in camera record of the proceedings may be made. If the ALJ enters a
protective order, any in camera record of such showing shall be sealed
and preserved and made available to the ALJ or, in the event of appeal,
to the Secretary or a court.
Sec. 180.540 Motion to compel discovery.
(a) If a deponent fails to answer a question propounded, or a party
upon whom a discovery request has been made fails to respond
adequately, objects to a request, or fails to produce documents or
other inspection as requested, the discovering party may move the ALJ
for an order compelling discovery in accordance with the request. The
motion shall:
(1) State the nature of the request;
(2) Set forth the response or objection of the deponent or party
upon whom the request was served;
(3) Present arguments supporting the motion; and
(4) Attach copies of all relevant discovery requests and responses.
(b) For the purposes of this section, an evasive or incomplete
answer or response will be treated as a failure to answer or respond.
(c) In ruling on a motion under this section, the ALJ may enter an
order compelling a response in accordance with the request, may issue
sanctions under paragraph (d) of this section, or may enter a
protective order under Sec. 180.535.
(d) Sanctions. If a party fails to provide or permit discovery, the
ALJ may take such action as is just, including but not limited to the
following:
(1) Inferring that the admission, testimony, document, or other
evidence would have been adverse to the party;
(2) Ordering that, for purposes of the adjudication, the matters
regarding which the order was made or any other designated facts shall
be taken to be established in accordance with the claim of the party
obtaining the order;
(3) Prohibiting the party failing to comply with the order from
introducing evidence concerning, or otherwise relying upon, documents
or other evidence withheld;
(4) Ordering that the party withholding discovery not introduce
into evidence, or otherwise use in the hearing, information obtained in
discovery;
(5) Permitting the requesting party to introduce secondary evidence
concerning the information sought;
(6) Striking any appropriate part of the pleadings or other
submissions of the party failing to comply with such order; or
(7) Taking such other action as may be appropriate.
Sec. 180.545 Subpoenas.
(a) This section governs the issuance of subpoenas in
administrative proceedings under the Fair Housing Act. Except for time
periods stated in the rules in this section, to the extent that this
section conflicts with procedures for the issuance of subpoenas in
civil actions in the United States District Court for the District in
which the investigation of the discriminatory housing practice took
place, the rules of the United States District Court apply.
(b) Issuance of subpoena. Upon the written request of a party, the
Chief ALJ or the presiding ALJ may issue a subpoena requiring the
attendance of a witness for the purpose of giving testimony at a
deposition or hearing and requiring the production of relevant books,
papers, documents or tangible things.
(c) Time of request. Requests for subpoenas in aid of discovery
must be submitted in time to permit the conclusion of discovery 15 days
before the date scheduled for the hearing. If a request for subpoenas
of a witness for testimony at a hearing is submitted three days or less
before the hearing, the subpoena shall be issued at the discretion of
the Chief ALJ or the presiding ALJ, as appropriate.
(d) Service. A subpoena may be served by any person who is not a
party and is not less than 18 years of age. Service on a person shall
be made by delivering a copy of the subpoena to the person and by
tendering witness fees and mileage to that person. When the subpoena is
issued on behalf of HUD, witness fees and mileage need not be tendered
with the subpoena.
(e) Amount of witness fees and mileage. A witness summoned by a
subpoena issued under this part is entitled to the same witness and
mileage fees as a witness in proceedings in United States District
Courts. Fees payable to a witness summoned by a subpoena shall be paid
by the party requesting the issuance of the subpoena, or where the ALJ
determines that a party is unable to pay the fees, the fees shall be
paid by HUD.
(f) Motion to quash or limit subpoena. Upon a motion by the person
served with a subpoena or by a party, made within five days after
service of the subpoena (but in any event not less than the time
specified in the subpoena for compliance), the ALJ may:
(1) Quash or modify the subpoena if it is unreasonable and
oppressive or for other good cause shown; or
(2) Condition denial of the motion upon the advancement, by the
party on whose behalf the subpoena was issued, of the reasonable cost
of producing subpoenaed books, papers or documents. Where circumstances
require, the ALJ may act upon such a motion at any time after a copy of
the motion has been served upon the party on whose behalf the subpoena
was issued.
(g) Failure to comply with subpoena. If a person fails to comply
with a subpoena issued under this section, the party requesting the
subpoena may refer the matter to the Attorney General for enforcement
in appropriate proceedings under 42 U.S.C. 3614(c).
Subpart F--Procedures at Hearing
Sec. 180.600 Date and place of hearing.
(a) For Fair Housing Act Cases. (1) Time. The hearing shall
commence not later than 120 days after the issuance of the charge,
unless it is impracticable to do so. If the hearing cannot be commenced
within this time period, the ALJ shall notify in writing all parties,
aggrieved persons, amici, and the Assistant Secretary of the reasons
for the delay.
(2) Place. The hearing will be conducted at a place in the vicinity
in which the discriminatory housing practice is alleged to have
occurred or to be about to occur.
(b) For Non-Fair Housing Matters. Hearings shall be held in
Washington, DC, unless the ALJ determines that the convenience of the
respondent or HUD requires that another place be selected.
(c) The ALJ may change the time, date or place of the hearing, or
may temporarily adjourn or continue a hearing for good cause shown.
Sec. 180.605 Conduct of hearings.
The hearing shall be conducted in accordance with the
Administrative Procedure Act (5 U.S.C. 551-559).
Sec. 180.610 Waiver of right to appear.
If all parties waive their right to appear before the ALJ, the ALJ
need not conduct an oral hearing. Such waivers
[[Page 52226]]
shall be in writing and filed with the ALJ. The ALJ shall make a record
of the pleadings and relevant written evidence submitted by the
parties. These documents may constitute the evidence in the proceeding,
and the decision may be based upon this evidence.
Sec. 180.615 Failure of party to appear.
A default decision may be entered against a party failing to appear
at a hearing unless such party shows good cause for such failure.
Sec. 180.620 Evidence.
The Federal Rules of Evidence apply to the presentation of evidence
in hearings under this part.
Sec. 180.625 Record of hearing.
(a) All oral hearings shall be recorded and transcribed by a
reporter designated and supervised by the ALJ. The original transcript
shall be a part of the record and shall constitute the sole official
transcript. All exhibits introduced as evidence shall be incorporated
into the record. The parties and the public may obtain transcripts from
the official reporter at rates not to exceed the applicable rates fixed
by the contract with the reporter.
(b) Corrections to the official transcript will be permitted upon
motion of a party. Motions for correction must be submitted within five
days after receipt of the transcript. Corrections of the official
transcript will be permitted only where errors of substance are
involved and upon the ALJ's approval.
Sec. 180.630 Stipulations.
The parties may stipulate to any pertinent facts by oral agreement
at the hearing or by written agreement at any time. Stipulations may be
submitted into evidence at any time before the end of the hearing. Once
received into evidence, a stipulation is binding on the parties.
Sec. 180.635 Written testimony.
The ALJ may accept and enter into the record direct testimony of
witnesses made by verified written statement rather than by oral
presentation at the hearing. Unless the ALJ fixes other time periods,
affidavits shall be filed and served on the parties not later than 14
days prior to the hearing. Witnesses whose testimony is presented by
affidavit shall be available for cross-examination as may be required.
Sec. 180.640 In camera and protective orders.
The ALJ may limit discovery or the introduction of evidence, or may
issue such protective or other orders necessary to protect privileged
communications. If the ALJ determines that information in documents
containing privileged matters should be made available to a party, the
ALJ may order the preparation of a summary or extract of the
nonprivileged matter contained in the original.
Sec. 180.645 Exhibits.
(a) Identification. All exhibits offered into evidence shall be
numbered sequentially and marked with a designation identifying the
sponsor. The original of each exhibit offered in evidence or marked for
identification shall be filed and retained in the docket of the
proceeding, unless the ALJ permits the substitution of a copy for the
original.
(b) Exchange of exhibits. One copy of each exhibit offered into
evidence must be furnished to each of the parties and to the ALJ. If
the ALJ does not fix a time for the exchange of exhibits, the parties
shall exchange copies of proposed exhibits at the earliest practicable
time before the commencement of the hearing. Exhibits submitted as
rebuttal evidence are not required to be exchanged before the
commencement of the hearing if the submission of such evidence could
not reasonably be anticipated at that time.
(c) Authenticity. The authenticity of all documents submitted or
exchanged as proposed exhibits prior to the hearing shall be admitted
unless written objection is filed before the commencement of the
hearing, or unless good cause is shown for failing to file such a
written objection.
(d) The parties are encouraged to stipulate as to the admissibility
of exhibits.
Sec. 180.650 Public document items.
Whenever a public document, such as an official report, decision,
opinion, or published scientific or economic statistical data issued by
any of the executive departments (or their subdivisions), legislative
agencies or committees, or administrative agencies of the Federal
Government (including Government-owned corporations), or a similar
document issued by a State or its agencies is offered (in whole or in
part), and such document (or part thereof) has been shown by the
offeror to be reasonably available to the public, such document need
not be produced or marked for identification, but may be offered for
official notice, as a public document item by specifying the document
or relevant part thereof.
Sec. 180.655 Witnesses.
FR Doc. 96-25301 Consolidated HUD Hearing Procedures for Civil Rights Matters
(a) Witnesses shall testify under oath or affirmation.
(b) If a witness fails or refuses to testify, the failure or
refusal to answer any question found by the ALJ to be proper may be
grounds for striking all or part of the testimony that may have been
given by the witness, or for any other action deemed appropriate by the
ALJ.
Sec. 180.660 Closing of record.
(a) Oral hearings. Where there is an oral hearing, the hearing ends
on the day of the adjournment of the oral hearing or, where written
briefs are permitted, on the date that the written briefs are due.
(b) Hearing on written record. Where the parties have waived an
oral hearing, the hearing ends on the date set by the ALJ as the final
date for the receipt of submissions by the parties.
(c) Receipt of evidence following hearing. Following the end of the
hearing, no additional evidence may be accepted into the record, except
with the permission of the ALJ. The ALJ may receive additional evidence
upon a determination that new and material evidence was not readily
available before the end of the hearing, the evidence has been timely
submitted, and its acceptance will not unduly prejudice the rights of
the parties.
Sec. 180.665 Arguments and briefs.
(a) Following the submission of evidence at an oral hearing, the
parties may file a brief, proposed findings of fact and conclusions of
law, or both, or, in the ALJ's discretion, make oral arguments.
(b) Unless otherwise ordered by the ALJ, briefs and proposed
findings of fact and conclusions of law shall be filed simultaneously
by all parties. In Fair Housing Act cases, such filings shall be due
not later than 45 days after the adjournment of the oral hearing. In
other cases, they shall be due as the ALJ orders.
Sec. 180.670 Initial decision of ALJ.
(a) The ALJ shall issue an initial decision including findings of
fact and conclusions of law upon each material issue of fact or law
presented on the record. The initial decision of the ALJ shall be based
on the whole record of the proceeding. A copy of the initial decision
shall be served upon all parties, aggrieved persons, the Assistant
Secretary, the Secretary, and amici, if any.
(b) Initial decision in Fair Housing Act cases. (1) The ALJ shall
issue an initial decision within 60 days after the end of the hearing,
unless it is impracticable to do so. If the ALJ is unable to issue the
initial decision
[[Page 52227]]
within this time period (or within any succeeding 60-day period
following the initial 60-day period), the ALJ shall notify in writing
all parties, the aggrieved person on whose behalf the charge was filed,
and the Assistant Secretary, of the reasons for the delay.
(2) The initial decision shall state that it will become the final
agency decision 30 days after the date of issuance of the initial
decision.
(3) Findings against respondents. If the ALJ finds that a
respondent has engaged, or is about to engage, in a discriminatory
housing practice, the ALJ shall issue an initial decision against the
respondent and order such relief as may be appropriate. Relief may
include, but is not limited to:
(i) Ordering the respondent to pay damages to the aggrieved person
(including damages caused by humiliation and embarrassment).
(ii) Ordering injunctive or such other equitable relief as may be
appropriate. No such order may affect any contract, sale, encumbrance
or lease consummated before the issuance of the initial decision that
involved a bona fide purchaser, encumbrancer or tenant without actual
knowledge of the charge.
(iii) Assessing a civil penalty against the respondent to vindicate
the public interest.
(A) The amount of the civil penalty may not exceed:
(1) $11,000, if the respondent has not been adjudged to have
committed any prior discriminatory housing practice in any
administrative hearing or civil action permitted under the Fair Housing
Act or any State or local fair housing law, or in any licensing or
regulatory proceeding conducted by a Federal, State or local
governmental agency.
(2) $27,500, if the respondent has been adjudged to have committed
one other discriminatory housing practice in any administrative hearing
or civil action permitted under the Fair Housing Act, or any State or
local fair housing law, or in any licensing or regulatory proceeding
conducted by a Federal, State, or local government agency, and the
adjudication was made during the five-year period preceding the date of
filing of the charge.
(3) $55,000, if the respondent has been adjudged to have committed
two or more discriminatory housing practices in any administrative
hearings or civil actions permitted under the Fair Housing Act or any
State or local fair housing law, or in any licensing or regulatory
proceeding conducted by a Federal, State, or local government agency,
and the adjudications were made during the seven-year period preceding
the date of the filing of the charge.
(B) If the acts constituting the discriminatory housing practice
that is the subject of the charge were committed by the same natural
person who has previously been adjudged, in any administrative
proceeding or civil action, to have committed acts constituting a
discriminatory housing practice, the time periods set forth in
paragraphs (b)(3)(iii)(A)(2) and (3) of this section do not apply.
(C) In a proceeding involving two or more respondents, the ALJ may
assess a civil penalty as provided under paragraph (b) of this section
against each respondent that the ALJ determines has been engaged or is
about to engage in a discriminatory housing practice.
(4) Findings in favor of respondents. If the ALJ finds that the
charging party has not established that a respondent has engaged in a
discriminatory housing practice, the ALJ shall make an initial decision
dismissing the charge as against that respondent.
(c) Initial Decision in Non-Fair Housing Act matters. The ALJ shall
issue the initial decision as soon as possible after the end of the
hearing.
(1) Findings against Respondents. If the ALJ finds that a
respondent has failed to comply substantially with the statutory and
regulatory requirements that gave rise to the notice of proposed
adverse action, the ALJ shall issue an initial decision against the
respondent.
(i) The initial decision shall provide for suspension or
termination of, or refusal to grant or continue, Federal financial
assistance, in whole or in part, to the involved program or activity.
(ii) The initial decision may contain such terms, conditions, and
other provisions as are consistent with and will effectuate the
purposes of the applicable statute and regulations, including
provisions designed to assure that no Federal financial assistance will
be extended for the program or activity unless and until the respondent
corrects its noncompliance and satisfies the Secretary that it will
fully comply with the relevant statute and regulations.
(iii) The initial decision shall state that it will become final
only upon the Secretary's approval.
(2) Findings in favor of respondents. If the ALJ finds that a
respondent has not failed to comply substantially with the statutory
and regulatory requirements that gave rise to the notice of proposed
adverse action, the ALJ shall make an initial decision dismissing the
notice of proposed adverse action. The initial decision shall state
that it will become the final agency decision 30 days after the date of
issuance.
Sec. 180.675 Petitions for review.
(a) The Secretary may affirm, modify or set aside, in whole or in
part, the initial decision, or remand the initial decision for further
proceedings.
(b) Any party adversely affected by the ALJ's initial decision may
file a motion with the Secretary explaining how and why the initial
decision should be modified, set aside, in whole or in part, or
remanded for further proceedings. Such petition shall be based only on
the following grounds:
(1) A finding of material fact is not supported by substantial
evidence;
(2) A necessary legal conclusion is erroneous;
(3) The decision is contrary to law, duly promulgated rules of HUD,
or legal precedent; or
(4) A prejudicial error of procedure was committed.
(c) Each issue shall be plainly and concisely stated and shall be
supported by citations to the record when assignments of error are
based on the record, statutes, regulations, cases, or other authorities
relied upon. Except for good cause shown, no assignment of error by any
party shall rely on any question of fact or law not presented to the
ALJ.
(d) Such petitions must be received by the Secretary within 15 days
after issuance of the initial decision.
(e) A statement in opposition to the petition for review may be
filed. Such opposition must be received by the Secretary within 22 days
after issuance of the initial decision.
(f) A petition not granted within 30 days after the issuance of the
initial decision is deemed denied.
(g) If the Secretary remands the decision for further proceedings,
the ALJ shall issue an initial decision on remand within 60 days after
the date of issuance of the Secretary's decision, unless it is
impracticable to do so. If the ALJ is unable to issue the initial
decision within this time period (or within any succeeding 60-day
period following the initial 60-day period), the ALJ shall notify in
writing the parties, the aggrieved person on whose behalf the charge
was filed, any amicus curiae and the Assistant Secretary, of the
reasons for the delay.
Sec. 180.680 Final decisions.
(a) Public disclosure. HUD shall make public disclosure of each
final decision.
(b) Where initial decision does not provide for suspension or
termination of, or refusal to grant or continue, Federal financial
assistance.
[[Page 52228]]
(1) Issuance of final decision by Secretary. The Secretary may
review any finding of fact, conclusion of law, or order contained in
the initial decision of the ALJ and issue a final decision in the
proceeding. The Secretary shall serve the final decision on all parties
no later than 30 days after the date of issuance of the initial
decision.
(2) No final decision by Secretary. If the Secretary does not serve
a final decision within the time period described in paragraph (b)(1)
of this section, the initial decision of the ALJ will become the final
agency decision. For the purposes of this part, such a final decision
will be considered to have been issued 30 days after the date of
issuance of the initial decision.
(c) Where initial decision provides for suspension or termination
of, or refusal to grant or continue, Federal financial assistance. When
the initial decision provides for the suspension or termination of, or
the refusal to grant or continue, Federal financial assistance, or the
imposition of any other sanction, such decision shall not constitute an
order or final agency action until approved by the Secretary. Further,
in the case of proceedings under title VI of the Civil Rights Act of
1964, no order suspending, terminating, or refusing to grant or
continue Federal financial assistance shall become effective until the
requirements of 24 CFR 1.8(c) have been met.
Subpart G--Post-Final Decision in Fair Housing Cases
Sec. 180.700 Action upon issuance of a final decision in Fair Housing
Act cases.
(a) Licensed or regulated businesses. (1) If a final decision
includes a finding that a respondent has engaged or is about to engage
in a discriminatory housing practice in the course of a business that
is subject to licensing or regulation by a Federal, State or local
governmental agency, the Assistant Secretary will notify the
governmental agency of the decision by:
(i) Sending copies of the findings of fact, conclusions of law and
final decision to the governmental agency by certified mail; and
(ii) Recommending appropriate disciplinary action to the
governmental agency, including, where appropriate, the suspension or
revocation of the respondent's license.
(2) The Assistant Secretary will notify the appropriate
governmental agencies within 30 days after the date of issuance of the
final decision, unless a petition for judicial review of the final
decision as described in Sec. 180.710 of this part has been filed
before the issuance of the notification of the agency. If such a
petition has been filed, the Assistant Secretary will provide the
notification to the governmental agency within 30 days after the date
that the final decision is affirmed upon review. If a petition for
judicial review is timely filed following the notification of the
governmental agency, the Assistant Secretary will promptly notify the
governmental agency of the petition and withdraw his or her
recommendation.
(b) Notification to the Attorney General. If a final decision
includes a finding that a respondent has engaged or is about to engage
in a discriminatory housing practice and another final decision
including such a finding was issued under this part within the five
years preceding the date of issuance of the final decision, the General
Counsel will notify the Attorney General of the decisions by sending a
copy of each final decision.
Sec. 180.705 Attorney's fees and costs.
Following the issuance of the final decision, any prevailing party,
except HUD, may apply for attorney's fees and costs. The ALJ will issue
an initial decision awarding or denying such fees and costs. The
initial decision will become HUD's final decision unless the Secretary
reviews the initial decision and issues a final decision on fees and
costs within 30 days. The recovery of reasonable attorney's fees and
costs will be permitted as follows:
(a) If the respondent is the prevailing party, HUD will be liable
for reasonable attorney's fees and costs to the extent provided under
the Equal Access to Justice Act (5 U.S.C. 504) and HUD's regulations at
24 CFR part 14, and an intervenor will be liable for reasonable
attorney's fees and costs only to the extent that the intervenor's
participation in the administrative proceeding was frivolous or
vexatious, or was for the purpose of harassment.
(b) To the extent that an intervenor is a prevailing party, the
respondent will be liable for reasonable attorney's fees unless special
circumstances make the recovery of such fees and costs unjust.
Sec. 180.710 Judicial review of final decision.
(a) Any party adversely affected by a final decision may file a
petition in the appropriate United States Court of Appeals for review
of the decision under 42 U.S.C. 3612(i). The petition must be filed
within 30 days after the date of issuance of the final decision.
(b) If no petition for review is filed under paragraph (a) of this
section within 45 days after the date of issuance of the final
decision, the findings of facts and final decision shall be conclusive
in connection with any petition for enforcement.
Sec. 180.715 Enforcement of final decision.
(a) Enforcement by HUD. Following the issuance of a final decision,
the General Counsel may petition the appropriate United States Court of
Appeals for the enforcement of the final decision and for appropriate
temporary relief or restraining order in accordance with 42 U.S.C.
3612(j).
(b) Enforcement by others. If no petition for review has been filed
within 60 days after the date of issuance, and the General Counsel has
not sought enforcement of the final decision as described in paragraph
(a) of this section, any person entitled to relief under the final
decision may petition the appropriate United States Court of Appeals
for the enforcement of the final decision in accordance with 42 U.S.C.
3612(m).
Subpart H--Post-Final Decision in Non-Fair Housing Act Matters
Sec. 180.800 Post-termination proceedings.
(a) A respondent adversely affected by the order terminating,
discontinuing, or refusing Federal financial assistance in consequence
of proceedings pursuant to this title may request the Secretary for an
order authorizing payment, or permitting resumption, of Federal
financial assistance. Such request shall:
(1) Be in writing;
(2) Affirmatively show that, since entry of the order, the
respondent has brought its program or activity into compliance with
statutory and regulatory requirements; and
(3) Set forth specifically, and in detail, the steps taken to
achieve such compliance.
(b) If the Secretary denies such request, the respondent may
request an expeditious hearing. The request for such a hearing shall be
addressed to the Secretary within 30 days after the respondent is
informed that the Secretary has refused to authorize payment or permit
resumption of Federal financial assistance and shall specify why the
Secretary erred in denying the request.
(c) The procedures established by this part shall be applicable to
any hearing.
Sec. 180.805 Judicial review of final decision.
A termination of or refusal to grant or to continue Federal
financial assistance is subject to judicial review as provided in the
applicable statute.
[[Page 52229]]
Dated: September 24, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-25301 Filed 10-3-96; 8:45 am]
BILLING CODE 4210-32-P
Complete official Federal Register PDF
FR Doc. 96-25298 Office of the Assistant Secretary for Community Planning and Development; Opportunities for Youth: Youthbuild Program Streamlining; Amendment of Interim Rule
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 52186-52187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25298]
[[Page 52185]]
_______________________________________________________________________
Part IV
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 585
Opportunities for Youth; Youthbuild Program Streamlining; Amendment of
Interim Rule; Final Rule
Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Rules
and Regulations
[[Page 52186]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 585
[Docket No. FR-4038-N-02]
RIN 2506-AB79
Office of the Assistant Secretary for Community Planning and
Development; Opportunities for Youth: Youthbuild Program Streamlining;
Amendment of Interim Rule
AGENCY: Office of the Assistant Secretary for Community Planning and
Development, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the interim rule which amended the
regulations for the Youthbuild Program to define administrative costs
for which Youthbuild funds may be expended. This final rule also makes
streamlining amendments to part 585.
EFFECTIVE DATE: November 4, 1996.
FOR FURTHER INFORMATION CONTACT: The Office of Economic Development,
Department of Housing and Urban Development, Room 7136, 451 Seventh
Street, SW, Washington, DC 20410. Telephone (202) 708-2035; TTY (202)
708-1455. (These telephone numbers are not toll-free.)
SUPPLEMENTARY INFORMATION:
Background
Section 164 of the Housing and Community Development Act of 1992
(Pub.L. 102-550) amended title IV of the National Affordable Housing
Act (42 U.S.C. 1437aaa) to add a new subtitle D which established the
Youthbuild program. On February 21, 1995, the Department published a
final rule at 60 FR 9734, which is codified at 24 CFR Part 585.
Amendment of Interim Rule
On May 17, 1996, the Department published an interim rule which
further addressed the use of Youthbuild funds for administrative costs,
including overhead and salaries and wages associated with an
implementation grant. The public comment period on the interim rule
expired on July 1, 1996. Fourteen commenters responded: Ten recipients
of Youthbuild funds, one potential grant operator, one certified public
accounting firm, and two national organizations. Overall, the
commenters believe that the rule diminishes the quality of the program
and is contrary to the goal of increasing the number of young adults in
Youthbuild programs. The commenters believe that it is contradictory to
the guiding principles in HUD's Community Planning and Development
programs and hampers the comprehensive approach to the program. The
commenters also assert that Youthbuild has worked up until now because
HUD has recognized the need to stimulate community investment and
support for Youthbuild's success and that the interim rule starts the
unraveling of this philosophy by weakening the infrastructure that
guides the Youthbuild program. The Department welcomes the comments of
the grantees and participants in the Youthbuild Program, and therefore
in recognition of the overwhelming criticism of the May 17, 1996
interim rule, the Department criticism of the May 17, 1996 interim
rule, the Department further amends Sec. 585.305(m) by removing
paragraphs (m)(1) and (m)(2) which were added by the interim rule.
Streamlining of Part 585
President Clinton's memorandum of March 4, 1995, titled
``Regulatory Reinvention Initiative'' directed heads of Federal
departments and agencies to review all existing regulations to
eliminate those that are outdated and modify others to increase
flexibility and reduce burden. As a part of HUD's overall effort to
reduce regulatory burden and streamline the content of title 24 of the
Code of Federal Regulations, this rule removes those provisions which
are unnecessary to be codified and can be made available through other
non-rulemaking means.
The Youthbuild program is authorized under subtitle D of title IV
of the National Affordable Housing Act (42 U.S.C. 12899) (``NAHA''), as
added by section 164 of the Housing and Community Development Act of
1992 (Pub. L. 102-550). Several provisions of the Youthbuild
regulations repeat statutory language from the legislation. It is
unnecessary to maintain statutory requirements in the Code of Federal
Regulations (CFR), since these requirements are otherwise fully
accessible and binding. Furthermore, if regulations contain statutory
language, HUD must amend the regulations whenever Congress amends the
statute. This final rule removes repetitious statutory language and
replaces it with a citation to the specific statutory section for easy
reference. The following streamlining amendments are made, therefore,
by this rule:
1. Section 585.2 Program Purpose is amended to state that the
purpose is set out in section 451 of NAHA.
2. Section 585.4 Definitions is amended to remove the definitions
for ``adjusted income,'' ``community based organization,'' ``homeless
individual,'' ``housing development agency,'' ``Indian tribe,''
``individual who has dropped out of high school,'' ``institution of
higher education,'' ``limited-English proficiency,'' ``low-income
family,'' ``offender,'' ``State,'' and ``very low-income family.'' An
introductory statement is added to Sec. 585.4 stating that the
definitions for these terms can be found in section 457 of NAHA.
3. Section 585.309 Project-related restrictions applicable to
Youthbuild residential rental housing is amended to revise paragraph
(e) to state that the monthly rental limitation and the profit
limitations on partners can be found in sec. 455(c)(1) and (2) of NAHA,
respectively. The same amendment is made to Sec. 585.310 Project-
related restrictions applicable to Youthbuild transitional housing for
the homeless.
4. Section 585.312 Wages, labor standards, and nondiscrimination is
revised to state that the applicable provisions are set out in sec.
456(e) of NAHA.
Justification for Final Rule on Streamlining Provisions
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with its own regulations on rulemaking
in 24 CFR part 10. However, part 10 provides for exceptions to the
general rule if the agency finds good cause to omit advance notice and
public participation. The good cause requirement is satisfied when
prior public procedure is ``impracticable, unnecessary, or contrary to
the public interest'' (24 CFR 10.1). HUD finds that good cause exists
to publish this rule for effect without first soliciting public comment
on the streamlining provisions. The streamlining provisions merely
remove unnecessary regulatory provisions and do not establish or affect
substantive policy. Therefore, prior public comment is unnecessary.
Findings and Certifications
(a) Environmental Impact. A Finding of No Significant Impact with
respect to the environment for this rule has been made in accordance
with HUD regulations at 24 CFR part 50, which implement section
102(2)(C) of the National Environmental Policy Act of 1969. The Finding
of No Significant Impact is available for public inspection between
7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules Docket
Clerk, Office of the General Counsel, Department of Housing and Urban
Development, Room 10276, 451
[[Page 52187]]
Seventh Street, SW., Washington, DC 20410.
(b) Regulatory Flexibility Act. The Secretary, in accordance with
the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this
rule before publication and by approving it certifies that this rule
will not have a significant economic impact on a substantial number of
small entities because the rule merely withdraws an interim rule and
makes nonsubstantive streamlining amendments to part 585.
(c) Executive Order 12612, Federalism. The General Counsel, as the
Designated Official under section 6(a) of Executive Order 12612,
Federalism, has determined that this rule does not have ``federalism
implications'' because it does not have substantial direct effects on
the States (including their political subdivisions), or on the
distribution of power and responsibilities among the various levels of
government.
(d) Executive Order 12606, The Family. The General Counsel, as the
Designated Official under Executive Order 12606, The Family, has
determined that this rule will not have a potential significant impact
on family formation, maintenance, and general well-being. This rule
merely withdraws an interim rule and makes nonsubstantive streamlining
amendments to part 585.
(e) Unfunded Mandates Reform Act. Title II of the Unfunded Mandates
Reform Act of 1995, Pub. L. 104-4, established requirements for Federal
agencies to assess the effects of their regulatory actions on State,
local, and tribal governments and the private sector. This rule does
not impose any Federal mandates on any State, local, or tribal
governments or the private sector within the meaning of the Unfunded
Mandates Reform Act of 1995.
(f) Catalog of Federal Domestic Assistance. The Catalog of Federal
Domestic Assistance Program number assigned to this program is 14.243.
(g) List of Subjects in 24 CFR Part 585. Grant programs--housing
and community development, Homeless, Low- and very low-income families,
Reporting and record keeping requirements.
Accordingly, for the reasons set forth in the preamble, part 585 of
title 24 of the Code of Federal Regulations is amended as follows:
PART 585--YOUTHBUILD PROGRAM
1. The authority citation for part 585 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 12899.
2. Section 585.2 is revised to read as follows:
Sec. 585.2 Program Purpose.
The purposes of the Youthbuild program are set out in section 451
of the National Affordable Housing Act (42 U.S.C. 12899) (``NAHA'').
3. Section 585.4 is amended to remove the definitions for
``adjusted income,'' ``community based organization,'' ``homeless
individual,'' ``housing development agency,'' ``Indian tribe,''
``individual who has dropped out of high school,'' ``institution of
higher education,'' ``limited-English proficiency,'' ``low-income
family,'' ``offender,'' ``State,'' and ``very low-income family'' and
to add introductory text to read as follows:
Sec. 585.4 Definitions.
The terms ``adjusted income,'' ``community based organization,''
``homeless individual,'' ``housing development agency,'' ``Indian
tribe,'' ``individual who has dropped out of high school,''
``institution of higher education,'' ``limited-English proficiency,''
``low-income family,'' ``offender,'' ``State,'' and ``very low-income
family'' are defined in section 457 of NAHA.
* * * * *
Sec. 585.305 [Amended]
4. In Sec. 585.305, paragraph (m) is amended to remove paragraphs
(m)(1) and (m)(2).
5. Section 585.309 is amended to revise paragraph (e) to read as
follows:
Sec. 585.309 Project-related restrictions applicable to Youthbuild
residential rental housing.
* * * * *
(e) Limitations on profit. Youthbuild residential rental housing
projects meeting the requirements of this section shall be restricted
from producing profit in excess of the limitations set out in sections
455(c)(1) and (2) of NAHA.
* * * * *
6. Section 585.310 is amended to revise paragraph (a) to read as
follows:
Sec. 585.310 Project-related restrictions applicable to Youthbuild
transitional housing for the homeless.
* * * * *
(a) Limitations on profit. Youthbuild residential rental housing
projects meeting the requirements of this section shall be restricted
from producing profit in excess of the limitations set out in sections
455(c)(1) and (2) of NAHA.
* * * * *
7. Section 585.312 is revised to read as follows:
Sec. 585.312 Wages, labor standards, and nondiscrimination.
Applicable provisions are stated in section 456(e) of NAHA.
Dated: September 24, 1996.
Andrew M. Cuomo,
Assistant Secretary for Community Planning and Development.
[FR Doc. 96-25298 Filed 10-3-96; 8:45 am]
BILLING CODE 4210-29-P
Complete official Federal Register PDF
FR Doc. 96-25209 Electrical Engineering Requirements for Merchant Vessels
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Page 51789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25209]
[[Page 51789]]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Coast Guard
46 CFR Parts 108, 110, 111, 112, 113, and 161
[CGD 94-108]
RIN 2115-AF24
Electrical Engineering Requirements for Merchant Vessels
AGENCY: Coast Guard, DOT.
ACTION: Notice of policy for interim rule.
-----------------------------------------------------------------------
SUMMARY: Two industry standards affecting the Coast Guard's electrical
engineering regulations for merchant vessels have been revised recently
or will be revised in the near future. Until the Coast Guard amends its
regulations to incorporate new standards, persons wishing to apply a
provision of one of these industry standards instead of a provision in
the current regulations may submit for approval on a case-by-case
basis, a request under the equivalency provisions in the current
regulations.
FOR FURTHER INFORMATION CONTACT:
Mr. Gerald P. Miante, Project Manager, Office of Design and Engineering
Standards (G-MSE), (202) 267-2206.
SUPPLEMENTARY INFORMATION: On June 4, 1996, the Coast Guard published
an interim rule entitled ``Electrical Engineering Requirements for
Merchant Vessels'' (61 FR 28260). This rule went into effect on
September 30, 1996, and amends the Coast Guard's electrical engineering
regulations in 46 CFR parts 108, 110, 111, 112, 113, and 161.
First, the regulations reference provisions in the 1995 edition of
the ``Rules for Building and Classing Steel Vessels'' of the American
Bureau of Shipping (ABS). In May 1996, ABS adopted a revised edition of
this standard, which the Coast Guard intends to incorporate into the
final rule for electrical engineering regulations within the next few
months.
Second, the regulations reference provisions in the 1983 edition of
the ``Recommended Practice for Electric Installations on Shipboard''
(Standard 45) of the institute of Electrical and Electronic Engineers
(IEEE). IEEE is in the process of revising this standard and plans to
issue a draft version in late November 1996 and a final version by mid-
January 1997. The Coast Guard will review and, if appropriate, will
incorporate this standard in its electrical engineering regulations as
well.
Until the Coast Guard incorporates these standards in the
regulations by the necessary rulemaking action, persons may request the
use of these new standards by submitting a request in accordance with
either 46 CFR 110.20-1 (for a provision in 46 CFR chapter I, subchapter
J) or 46 CFR 161.002-17 (for a provision in 46 CFR part 161, subpart
161.002) of the interim rule. These requests are considered for
approval on a case-by-case basis under Coast Guard regulations.
Dated: September 26, 1996.
Howard L. Hime,
Acting Director of Standards, Marine Safety and Environmental
Protection.
[FR Doc. 96-25209 Filed 10-3-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-25158 Sales of Credit Life Insurance
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 51777-51782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25158]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 2
[Docket No. 96-22]
RIN 1557-AB49
Sales of Credit Life Insurance
AGENCY: Office of the Comptroller of the Currency, Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of the Comptroller of the Currency (OCC) is
revising its
[[Page 51778]]
regulation governing national bank sales of credit life insurance and
the disposition of credit life insurance income. This final rule is
another component of the OCC's Regulation Review Program to update and
streamline OCC regulations, focus regulations on key safety and
soundness concerns and agency objectives, and eliminate requirements
that impose unnecessary regulatory burdens on national banks. The final
rule eliminates unnecessarily detailed provisions, reorganizes the rule
into a more helpful format, and refocuses the regulation to better
address areas presenting potential safety and soundness and conflict of
interest issues.
EFFECTIVE DATE: December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Stuart E. Feldstein, Assistant
Director, Legislative and Regulatory Activities, (202) 874-5090; Karen
E. McSweeney, Attorney, Legislative and Regulatory Activities, (202)
874-5090. Office of the Comptroller of the Currency, 250 E Street, SW,
Washington, DC 20219.
SUPPLEMENTARY INFORMATION:
Background
On September 13, 1995, the OCC published a notice of proposed
rulemaking, 60 FR 47498 (September 13, 1995) (proposal), to revise 12
CFR part 2--the OCC's regulation governing credit life insurance and
the disposition of credit life insurance income. The proposal
reaffirmed the OCC's commitment to addressing the concerns that gave
rise to the former part 2 and did not contemplate altering the
fundamental standards reflected in the former rule.
As noted in the proposal, there are two principal concerns that
part 2 is intended to address. First, part 2 is ``premised on the
judgment that income earned from credit life insurance sales to bank
customers by bank officers using bank premises and good will in the
creation of bank assets (loans) should be credited to bank earnings
rather than be paid directly to and retained by officers, directors or
selected stockholders.'' See 42 FR 48518 (September 23, 1977). Second,
a conflict of interest may exist when a loan officer's receipt of
commissions for the sale of the credit life insurance is tied to the
number of loans he or she makes. This prospect of financial reward
based solely upon loan volume may induce loan officers to make unsound
loans or unsound insurance recommendations to the bank's customers. \1\
See generally First National Bank of La Marque v. Smith, 610 F.2d 1258
(5th Cir. 1980).
---------------------------------------------------------------------------
\1\ Additional safety and soundness concerns cited when the rule
was adopted included that: (1) arrangements permitting employees,
officers and directors to use bank premises and good will for
personal profit were inimical to the trust and confidence depositors
place in financial institutions; (2) the acquisition of a bank by
investors who rely on the credit life insurance income to service
their debt was inherently unsafe and unsound because it decreases
their interest in running a profitable bank; and (3) incentives to
increase bank profits were diminished if money was distributed other
than through dividends. See 41 FR 29846 (July 20, 1976); 42 FR 48518
(September 23, 1977).
---------------------------------------------------------------------------
The courts have confirmed the authority of a national bank to sell
credit life insurance. See IBAA v. Heimann, 613 F.2d 1164 (D.C. Cir.
1979), cert. denied, 449 U.S. 823 (1980). In Heimann, the D.C. Circuit
stated that 12 U.S.C. 24 (Seventh) grants national banks all incidental
powers necessary to carry on the business of banking and found that the
sale of credit life insurance is within the incidental powers of
national banks. As the court noted, credit life insurance is both
commonplace and essential where ordinary loans on personal security are
involved. Id. at 1170. The court also found that the then-current part
2 regulations were well within the OCC's rulemaking authority. Id. at
1171.
Comments Received and Changes Made
The proposal revised part 2 by streamlining the overly detailed
format of the former part 2 and reorganizing the rule into more
readable and concise provisions. The OCC received 25 comments on the
proposal. The commenters included 17 banks and bank holding companies,
four trade associations, two law firms, one public interest
organization, and one insurance company.
The commenters generally supported the proposed changes to part 2,
and the final rule implements most of the initiatives contained in the
proposal, including the revised structure and format. However, many
commenters recommended changes to specific sections. The OCC carefully
considered each comment and has responded by making certain changes.
The section-by-section discussion of this preamble identifies and
discusses comments received and any changes made to the proposal.
Distribution and derivation tables summarizing sections of former part
2 as changed by the final rule are included at the end of this
preamble.
Section-by-Section Discussion
Section 2.1--Authority, Purpose, and Scope
The proposal added an ``Authority, purpose, and scope'' section
that briefly described the objectives and scope of the regulation. This
section also restated language from former Sec. 2.6 relating to
national bank authority to provide credit life insurance under 12
U.S.C. 24 (Seventh).
The OCC received no comments on this section. The final rule adopts
the section substantially as proposed.
Section 2.2--Definitions
The proposal defined ``credit life insurance'' to mean ``credit
life, health, and accident insurance.'' The OCC requested comment on
whether the scope of this definition was appropriate. The OCC received
11 comments on this issue. Most commenters recommended expanding the
definition to include, for example, all types of credit-related
insurance.
The OCC declines, at this time, to expand the regulatory definition
of ``credit life insurance,'' but notes that it has approved, on a
case-by-case basis, bank sales of other types of credit-related
insurance. The OCC recognizes that national banks are authorized to
offer credit-related insurance other than credit life insurance
pursuant to 12 U.S.C. 24(Seventh) and will continue to consider these
types of credit-related insurance on a case-by-case basis.
A number of commenters also noted that the OCC had removed language
from the definition of credit life insurance and questioned whether the
OCC intended to change the meaning of the definition. In addition to
stating that credit life insurance ``means credit life, health and
accident insurance,'' the former rule also noted that this is
``sometimes referred to as credit life and disability insurance, and
mortgage life and disability insurance.'' The proposal did not include
this latter language. However, the OCC did not intend to change the
definition of credit life insurance. Thus, to avoid any confusion, the
final rule retains the language contained in the former rule.
In addition, the final rule retains the definition of the term
``bank'' contained in the former rule and makes a technical change by
replacing the defined term ``interest'' with ``owning an interest.''
Section 2.3--Distribution of Credit Life Insurance Income
The proposal provided that the means of distributing credit life
insurance income must be consistent with certain requirements and
principles identified in proposed Sec. 2.3. These requirements included
prohibiting a director, officer, employee, or principal shareholder
(bank insider), or an entity in which a bank insider has a voting
interest of five percent or more, from retaining
[[Page 51779]]
commissions or other income from the sale of credit life insurance to
loan customers of the bank, subject to certain exceptions for bonus and
incentive plans. Proposed Sec. 2.3 also provided that it is unsafe and
unsound for a bank insider, or an entity in which the insider has a
voting interest of five percent or more, to take advantage of that
business opportunity for personal profit.
The proposal defined the term ``principal shareholder'' as any
shareholder who directly or indirectly owns or controls an interest of
more than five percent of the bank's outstanding shares. The OCC asked
commenters to address whether the five percent ownership test for a
``principal shareholder'' and for covered entities in which bank
insiders have an interest is an appropriate ownership test to use in
these contexts, and, if not, what alternative percentages or more
flexible standards would be appropriate.
The OCC received seven comments on this issue. Six commenters
recommended increasing the ownership test to ten percent. One commenter
stated that the definition of principal shareholder is too broad and
should not include holding companies.
The final rule increases the ownership test from five percent to
ten percent. The ten percent ownership level is used to define a
``principal shareholder'' for purposes of other safety and soundness
regulations, and the OCC does not believe safety and soundness concerns
require a lower threshold in the context of the part 2 definition. For
example, a ``principal shareholder'' for purposes of insider lending
standards is defined using a ten percent voting securities ownership
test. 12 CFR 215.2(m)(1).
Thus, the final rule defines a ``principal shareholder'' as any
shareholder who directly or indirectly owns or controls an interest of
more than ten percent of the bank's outstanding voting securities. The
final rule also provides that it is an unsafe and unsound practice for
any bank director, officer, employee, or principal shareholder, or any
entity in which this person owns an interest of more than ten percent,
who is involved in the sale of credit life insurance to loan customers
of the national bank, to take advantage of that business opportunity
for personal profit. In this regard, the final rule states that
recommendations to customers to buy credit life insurance should be
based on the benefits of the policy, not the commissions to be received
from the sale. In addition, except as provided in Secs. 2.3(d), 2.4,
and 2.5(b), a bank insider, or an entity in which the bank insider owns
an interest of more than ten percent, may not retain commissions or
other income from the sale of credit life insurance in connection with
any loan made by that bank, and income from credit life insurance sales
must be credited to the income accounts of the bank.
The OCC also requested comment on situations where banks share
space and employees with other non-bank entities. In some instances,
the bank and another entity that uses bank premises may share employees
to sell products, potentially including credit life insurance, to the
bank's customers. To the extent these shared employees received
commissions from the sale of the credit life insurance, the arrangement
arguably fell within the prohibitions contained in the proposal.
The OCC received one comment on this issue. The commenter
recommended that the bank receive the profits from sales of credit life
insurance by shared employees.
The OCC agrees that in some cases this is the appropriate result.
However, there are situations where the concerns underlying part 2
would not, generally, be implicated. Accordingly, the final rule
focuses on the objectives underlying part 2 and does not apply the part
2 restrictions in certain cases to dual employees, provided that
specified conditions are met. Thus, under the final rule, a director,
officer, employee, or principal shareholder is not subject to the
specific limits of part 2 if he or she is: (1) Employed by a third
party that has contracted with the bank on an arm's-length basis to
sell financial products on bank premises; and (2) not involved in the
bank's credit decision process.
The first requirement ensures that the third party will compensate
the bank for the use of the bank's premises, thus addressing the
concern that the bank be properly reimbursed for the use of its
premises and good will. The second requirement addresses potential
conflicts of interest that may arise when the individual selling the
insurance is involved in the credit decision. The OCC believes that
these conditions effectively adapt the part 2 safeguards to the dual
employee situation.
The proposal also requested comment on whether to retain a
provision that permitted income from the sale of credit life insurance
to be credited to a holding company affiliate of the bank or to a trust
for the benefit of all shareholders, if the holding company affiliate
or trust paid reasonable compensation to the bank for the use of its
personnel, premises, and good will. Under the former rule, it was
suggested that reasonable compensation meant an amount equivalent to at
least 20 percent of the affiliate's net income attributable to the
bank's credit life insurance sales.
The OCC received only a few comments addressing this issue. After
considering these comments, the OCC has decided to retain the current
provision with a few modifications. Thus, under the final rule, income
derived from the sale of credit life insurance to loan customers may be
credited to an affiliate operating under the Bank Holding Company Act
of 1956, 12 U.S.C. 1841 et seq., or to a trust for the benefit of all
shareholders, if the holding company affiliate or trust pays reasonable
compensation to the bank for the use of the bank's personnel, premises,
and good will. The OCC does not believe, however, that it is
appropriate for it to suggest what constitutes reasonable compensation
in these arrangements. Thus, the final rule states that reasonable
compensation generally means an amount equivalent to at least 20
percent of the affiliate's net income attributable to the bank's credit
life insurance sales. This provision has been transferred a new section
2.5(b).
The proposal also requested comment on whether to apply the
prohibition against the retention of income derived from the sale of
credit life insurance to sales of credit life insurance to loan
customers of an affiliate bank. The OCC received several comments on
this issue, which raised issues warranting further study. Therefore,
this issue is not addressed in the final rule.
Section 2.4--Bonus and Incentive Plans
Both the proposal and the former regulation permitted limited bonus
and incentive arrangements for employees and officers notwithstanding
the general prohibition against paying insiders income derived from the
sale of credit life insurance. Bonuses and incentive payments based on
credit life insurance sales in any one year are limited to the greater
of five percent of the recipient's annual salary or five percent of the
average salary of all loan officers participating in the plan. The bank
may not pay bonuses more frequently than quarterly.
The OCC requested comment relating to both the frequency and amount
of the bonus and incentive payments. Specifically, the OCC asked
commenters to address whether the periodic payment standard and the
percentage limits are appropriate safeguards for bonus and incentive
programs, and, if not, what alternative safeguards would deter
inappropriate sales activities by insiders in connection with the sale
of credit life insurance.
The OCC received 22 comments addressing the permissible amount of
[[Page 51780]]
bonus and incentive plan payments. Nineteen commenters supported either
eliminating or increasing the five percent limit on the amount that a
bank may pay its employees under an incentive or bonus plan. Commenters
recommended alternatives including: (1) Permitting any compensation
plan approved by the bank's board of directors; (2) permitting up to
five percent of premiums sold; and (3) expanding the percentage from
five percent to up to ten percent. Other commenters suggested that the
sole limitation should be the requirement contained in the proposal
that the bank not structure its sales practices in a manner that could
create incentives for persons selling credit life insurance to make
inappropriate recommendations.
Those supporting the retention of the current standards asserted
that the five percent standard is reasonable and provides sufficient
safeguards against abuses. One commenter stated that the five percent
limit provides a necessary bright-line test to prevent banks from
coercing customers.
The OCC agrees with the reasons offered by the commenters for
retaining the five percent limit on bonus and incentive plan payments
based on credit life insurance sales. The OCC shares the concerns
expressed that the prospect of increased financial reward could create
an inappropriate incentive for salespersons to make financially unsound
loans or to recommend insurance based on the amount of commissions paid
rather than the benefits of the policy itself, thereby undermining the
purpose of the regulation. Thus, the final rule retains the five
percent limit on the amount of permissible bonus and incentive plan
payments based on credit life insurance sales.
The OCC also received 18 comments addressing the frequency of
permissible bonus payments. Several commenters suggested either
eliminating or changing to monthly the quarterly limitation on the
frequency with which a bank could make bonus payments.
The OCC is not aware that the frequency--as opposed to the amount--
of the bonus payments has any demonstrable relationship to the
potential for coercing customers to purchase credit life insurance.
Moreover, removing this requirement could reduce burden and increase
flexibility for national banks that have separate payment procedures
for employees selling credit life insurance. Therefore, the final rule
removes the limitation on the frequency of bonus payments.
The proposal also added a new provision requiring the bank to avoid
structuring its bonus or incentive plan in a manner that could create
incentives for persons selling credit life insurance to make
inappropriate recommendations or sales of credit life insurance to bank
customers. The OCC received four comments on this provision. Several
commenters expressed concern that the provision was too vague and could
thereby encourage litigation against banks by disaffected purchasers of
credit life insurance.
The OCC agrees that the proposed provision was potentially vague.
However, the OCC believes that the issue nevertheless needs to be
addressed. As noted in the discussion of Sec. 2.3, the OCC believes
that encouraging a customer to buy credit life insurance on the basis
of commissions to the seller rather than the benefits of the policy is
an example of taking inappropriate advantage of a business opportunity
for personal profit. This is a concern regardless of the percentage
limitations that apply to bank insiders' and principal shareholders'
receipt of incentive and bonus payments and, accordingly, is
specifically referenced in Sec. 2.3 of the final rule.
Section 2.5--Bank Compensation
The OCC has made one clarifying structural change to the final
rule. The final rule transfers to a new Sec. 2.5(a) a concept from the
former rule and the proposal relating to the permissibility of a bank
insider compensating the bank for the use of bank premises, employees,
or good will. Also, as noted earlier, Sec. 2.5(b) contains a provision
from the former rule which allows income derived from credit life
insurance sales to loan customers to be credited to a holding company
affiliate or a trust for the benefit of all shareholders, provided that
the bank receives reasonable compensation in recognition for the role
played by its personnel, premises, and good will in the sale of the
credit life insurance. Reasonable compensation generally means an
amount equivalent to at least 20 percent of the affiliate's net income
attributable to the bank's credit life insurance sales.
Other Changes
The proposal also made a number of additional changes to the
regulation. For example, the proposal removed former Sec. 2.5 which
relates to director responsibilities because that issue was addressed
in a different section of the regulation. The proposal also removed
language in former Sec. 2.6 that contained a list of OCC approved
methods of distributing credit life insurance income that identified
alternatives to the assignment of commissions to the bank. The proposal
substituted a simple statement that the means of distribution of credit
life insurance income must be consistent with the requirements and
principles of Sec. 2.3. The final rule adopts, substantially as
proposed, these changes.
The proposal also removed former Sec. 2.7, which reserved the
Comptroller's authority to modify the applicability of part 2 based on
the particular circumstances of the bank. The final rule removes this
provision. However, as stated in the proposal, the OCC will continue to
consider requests for waivers of part 2 on a case-by-case basis.
Distribution Table
The distribution table indicates where, if applicable, each section
of the former part 2 will appear in the final part 2.
------------------------------------------------------------------------
Original provision Revised provision Comment
------------------------------------------------------------------------
Sec. 2.1...................... Sec. 2.1(a)....... Modified.
Sec. 2.2(a)................... Sec. 2.1(c)....... Modified.
Sec. 2.2(b)................... Sec. 2.1(b)....... Modified.
Sec. 2.3...................... Sec. 2.2.......... Modified.
Sec. 2.4(a)................... Secs. 2.3, 2.4.... Modified.
Sec. 2.4(b)................... Secs. 2.3(c), Modified.
2.5(b).
Sec. 2.4(c)................... Sec. 2.5(a)....... Modified.
Sec. 2.5...................... Sec. 2.3(b)....... Modified.
Sec. 2.6...................... ................... Removed.
Sec. 2.7...................... ................... Removed.
------------------------------------------------------------------------
Derivation Table
This derivation table illustrates the former sections of part 2
upon which the final sections are based.
------------------------------------------------------------------------
Revised provision Original provision Comment
------------------------------------------------------------------------
Sec. 2.1(a)................... Sec. 2.1.......... Modified.
Sec. 2.1(b)................... Sec. 2.2(b)....... Modified.
Sec. 2.1(c)................... Sec. 2.2(a)....... Modified.
Sec. 2.2...................... Sec. 2.3.......... Modified.
Secs. 2.3(a), (b), and (c).... Secs. 2.4(a), (b). Modified.
Sec. 2.3(d)................... ................... Added.
Sec. 2.4...................... Sec. 2.4(a)....... Modified.
Sec. 2.5(a)................... Sec. 2.4(c)....... Modified.
Sec. 2.5(b)................... Sec. 2.4(b)....... Modified.
------------------------------------------------------------------------
Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. section 605(b), the Comptroller of the Currency certifies that
this rule will not have a significant economic impact on a substantial
number of small entities. This final rule eliminates unnecessary or
confusing language and restructures part 2 to clarify regulatory
requirements. This final rule reduces, somewhat, regulatory burden on
national banks,
[[Page 51781]]
regardless of size. This final rule has minimal impact. Accordingly, a
regulatory flexibility analysis is not required.
Executive Order 12866
The OCC has determined that this final rule is not a significant
regulatory action under Executive Order 12866.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded
Mandates Act), 2 U.S.C. 1532, requires that an agency prepare a
budgetary impact statement before promulgating a rule that includes a
Federal mandate that may result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year. If a budgetary impact statement is
required, section 205 of the Unfunded Mandates Act, 2 U.S.C. 1535, also
requires an agency to identify and consider a reasonable number of
regulatory alternatives before promulgating a rule. Because the OCC has
determined that this final rule will not result in expenditures by
state, local, and tribal governments, or by the private sector, of more
than $100 million in any one year, the OCC has not prepared a budgetary
impact statement or specifically addressed the regulatory alternatives
considered. As discussed in the preamble, the final rule has the effect
of reducing burden and increasing the flexibility of national banks,
consistent with safe and sound banking practices.
List of Subjects in 12 CFR Part 2
Credit, Life insurance, National banks.
Authority and Issuance
For the reasons set out in the preamble, part 2 of chapter I of
title 12 of the Code of Federal Regulations is revised to read as
follows:
PART 2--SALES OF CREDIT LIFE INSURANCE
Sec.
2.1 Authority, purpose, and scope.
2.2 Definitions.
2.3 Distribution of credit life insurance income.
2.4 Bonus and incentive plans.
2.5 Bank compensation.
Authority: 12 U.S.C. 24 (Seventh), 93a, and 1818(n).
Sec. 2.1 Authority, purpose, and scope.
(a) Authority. A national bank may provide credit life insurance to
loan customers pursuant to 12 U.S.C. 24 (Seventh).
(b) Purpose. The purpose of this part is to set forth the
principles and standards that apply to a national bank's provision of
credit life insurance and the limitations that apply to the receipt of
income from those sales by certain individuals and entities associated
with the bank.
(c) Scope. This part applies to the provision of credit life
insurance by any national bank employee, officer, director, or
principal shareholder, and certain entities in which such persons own
an interest of more than ten percent.
Sec. 2.2 Definitions.
(a) Bank means a national banking association or a bank located in
the District of Columbia and subject to the supervision of the
Comptroller of the Currency.
(b) Credit life insurance means credit life, health, and accident
insurance, sometimes referred to as credit life and disability
insurance, and mortgage life and disability insurance.
(c) Owning an interest includes:
(1) Ownership through a spouse or minor child;
(2) Ownership through a broker, nominee, or other agent; or
(3) Ownership through any corporation, partnership, association,
joint venture, or proprietorship, that is controlled by the director,
officer, employee, or principal shareholder of the bank.
(d) Officer, director, employee, or principal shareholder includes
the spouse and minor children of an officer, director, employee, or
principal shareholder.
(e) Principal shareholder means any shareholder who directly or
indirectly owns or controls an interest of more than ten percent of the
bank's outstanding voting securities.
Sec. 2.3 Distribution of credit life insurance income.
(a) Distribution of credit life insurance income by a national bank
must be consistent with the requirements and principles of this
section.
(b) It is an unsafe and unsound practice for any director, officer,
employee, or principal shareholder of a national bank (including any
entity in which this person owns an interest of more than ten percent),
who is involved in the sale of credit life insurance to loan customers
of the national bank, to take advantage of that business opportunity
for personal profit. Recommendations to customers to buy insurance
should be based on the benefits of the policy, not the commissions
received from the sale.
(c) Except as provided in Secs. 2.4 and 2.5(b), and paragraph (d)
of this section, a director, officer, employee, or principal
shareholder of a national bank, or an entity in which such person owns
an interest of more than ten percent, may not retain commissions or
other income from the sale of credit life insurance in connection with
any loan made by that bank, and income from credit life insurance sales
to loan customers must be credited to the income accounts of the bank.
(d) The requirements of paragraph (c) of this section do not apply
to a director, officer, employee, or principal shareholder if:
(1) The person is employed by a third party that has contracted
with the bank on an arm's-length basis to sell financial products on
bank premises; and
(2) The person is not involved in the bank's credit decision
process.
Sec. 2.4 Bonus and incentive plans.
A bank employee or officer may participate in a bonus or incentive
plan based on the sale of credit life insurance if payments to the
employee or officer in any one year do not exceed the greater of:
(a) Five percent of the recipient's annual salary; or
(b) Five percent of the average salary of all loan officers
participating in the plan.
Sec. 2.5 Bank compensation.
(a) Nothing contained in this part prohibits a bank employee,
officer, director, or principal shareholder who holds an insurance
agent's license from agreeing to compensate the bank for the use of its
premises, employees, or good will. However, the employee, officer,
director, or principal shareholder shall turn over to the bank as
compensation all income received from the sale of the credit life
insurance to the bank's loan customers.
(b) Income derived from credit life insurance sales to loan
customers may be credited to an affiliate operating under the Bank
Holding Company Act of 1956, 12 U.S.C. 1841 et seq., or to a trust for
the benefit of all shareholders, provided that the bank receives
reasonable compensation in recognition of the role played by its
personnel, premises, and good will in credit life insurance sales.
Reasonable compensation generally means an amount equivalent to at
least 20 percent of the affiliate's net income attributable to the
bank's credit life insurance sales.
[[Page 51782]]
Dated: August 30, 1996.
Eugene A. Ludwig,
Comptroller of the Currency.
[FR Doc. 96-25158 Filed 10-3-96; 8:45 am]
BILLING CODE 4810-33-P
Complete official Federal Register PDF
FR Doc. 96-23063 Control of Air Pollution; Final Rule for New Gasoline Spark- Ignition Marine Engines; Exemptions for New Nonroad Compression- Ignition Engines at or Above 37 Kilowatts and New Nonroad Spark- Ignition Engines at or Below 19 Kilowatts
[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Rules and Regulations]
[Pages 52088-52169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23063]
[[Page 52087]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 89, 90, and 91
_______________________________________________________________________
Air Pollution Control; Gasoline Spark-Ignition Marine Engines; New
Nonroad Compression-Ignition and Spark-Ignition Engines, Exemptions;
Rule
Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Rules
and Regulations
[[Page 52088]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 89, 90, and 91
[FRL-5548-8]
RIN 2060-AE54
Control of Air Pollution; Final Rule for New Gasoline Spark-
Ignition Marine Engines; Exemptions for New Nonroad Compression-
Ignition Engines at or Above 37 Kilowatts and New Nonroad Spark-
Ignition Engines at or Below 19 Kilowatts
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: As directed under section 213 of the Clean Air Act as amended
in 1990 (CAA), EPA is regulating exhaust emissions from new spark-
ignition (SI) gasoline marine engines (including outboard engines,
personal watercraft engines, and jet boat engines) because exhaust
emissions from SI gasoline marine engines cause or contribute to ozone
concentrations in more than one ozone nonattainment area. Once the
program is fully implemented, manufacturers of these engines must
demonstrate to EPA that hydrocarbon emissions are reduced, by 75% from
present levels, by testing engines representative of the product line
before sale and after use. The result of these regulations will be a
new generation of cleaner gasoline marine engines available to boaters.
EPA is also revising existing regulations for new nonroad CI
engines at or above 37 kW and new nonroad SI engines at or below 19 kW
so as to include exemptions comparable to exemptions provided to
highway engines.
DATES: This regulation is effective December 3, 1996. The reference of
certain publications listed in the regulations is approved by the
Director of the Federal Register as of December 3, 1996. The
information collection requirements contained in 40 CFR Part 91 have
not been approved by the Office of Management (OMB) and are not
effective until OMB has approved them. EPA will publish a document in
the Federal Register announcing the effective date.
A public workshop for manufacturers who must comply with this
regulation will be held on November 13, 1996 beginning at 10 a.m.
ADDRESSES: For information or compliance assistance, manufacturers who
must comply with this regulation may contact the Office of Mobile
Sources, Engine Programs and Compliance Division, Engine Compliance
Programs Group, 501 3rd Street, Washington, DC 20005. The public
workshop will be held at 501 3rd Street, Washington, DC 20005.
Materials relevant to this rulemaking are contained in a docket at
the following address: EPA Air Docket (LE-131), Attention: Docket
Number A-92-28, room M-1500, 401 M Street, SW., Washington, DC 20460.
Materials contained in this docket may be reviewed at this location
from 8:00 a.m. until noon and from 1:30 p.m. until 3:30 p.m. Monday
through Friday. As provided in 40 CFR part 2, a reasonable fee may be
charged by EPA for photocopying.
FOR FURTHER INFORMATION CONTACT: Deanne R. North, Office of Mobile
Sources, Engine Programs and Compliance Division, at (313) 668-4283 or
James A. Blubaugh, Office of Mobile Sources, Engine Programs and
Compliance Division, (202) 233-9244.
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
Entities potentially regulated by this action are those which
manufacture SI gasoline marine engines. Regulated categories and
entities include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Industry.......................... Outboard engine manufacturers,
personal watercraft engine
manufacturers, jetboat engine
manufacturers
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your product is regulated by this action, you should carefully examine
the applicability criteria in Sec. 91.1 of title 40 of the Code of
Federal Regulations. If you have questions regarding the applicability
of this action to a particular product, consult the person listed in
the preceding FOR FURTHER INFORMATION CONTACT section.
II. Obtaining Copies of Documents
This preamble, the final regulatory language, the Summary and
Analysis of Comments, and the Regulatory Impact Analysis are also
available electronically on the Technology Transfer Network (TTN),
which is an electronic bulletin board system (BBS) operated by EPA's
Office of Air Quality Planning and Standards. The service is free of
charge, except for the cost of the phone call. Users are able to access
and download TTN files on their first call using a personal computer
and modem per the following information.
TTN BBS: 919-541-5742 (1200-14400 bps, no parity, 8 data bits, 1 stop
bit) Voice Helpline: 919-541-5384
Also accessible via Internet: TELNET ttnbbs.rtpnc.epa.gov Off-line:
Mondays from 8:00 a.m. to 12:00 Noon ET
A user who has not called TTN previously will first be required to
answer some basic informational questions for registration purposes.
After completing the registration process, proceed through the
following menu choices from the Top Menu to access information on this
rulemaking.
GATEWAY TO TTN TECHNICAL AREAS (Bulletin Boards)
OMS--Mobile Sources Information
Rulemaking & Reporting
<6> Non-Road
<1> File area #1. Non-Road Marine Engines
At this point, the system will list all available files in the
chosen category in chronological order with brief descriptions. To
download a file, select a transfer protocol that is supported by the
terminal software on your own computer, then set your own software to
receive the file using that same protocol.
If unfamiliar with handling compressed (that is, ZIP'ed) files, go
to the TTN top menu, System Utilities (Command: 1) for information and
the necessary program to download in order to unZIP the files of
interest after downloading to your computer. After getting the files
you want onto your computer, you can quit the TTN BBS with the
oodbye command.
Please note that due to differences between the software used to
develop the document and the software into which the document may be
downloaded, changes in format, page length, etc. may occur.
III. Contents
IV. Statutory Authority and Background
A. Statutory Authority
B. Background
V. Requirements of the Final Rule--Overview
A. Outboards and Personal Watercraft, and Jetboat Engines
B. Emission Standards
C. Administrative Programs
1. Pre-production Certification
i. Beginning of Emission Standard Phase-in
ii. Stabilization of Certification Program
2. Production Line Testing and Compliance
3. In-Use Testing and Remediation
i. In-Use Testing Program
[[Page 52089]]
ii. In-Use Credit Program
iii. Recall Provisions
4. Consumer Warranty on Emission Components
5. Manufacturer Reporting of Engines with Emission effects and
Voluntary Emission Recalls
6. Tampering with Emission Components
7. Engines Excluded or Exempted from Regulations
8. Prohibition on Importation of Uncertified Engines into the
United States
9. Revisions to Small SI (40 CFR Part 90) and Large CI (40 CFR
Part 89) Regulations--Added Exemptions
VI. Discussion of Issues
A. No Sterndrive or Inboard Emission Standards
B. Outboard/Personal Watercraft (OB/PWC) Emission Standards Meet
Statutory Criteria
VII. Regulatory Impact Analysis
VIII. Administrative Requirements
A. Reporting and Recordkeeping Requirements
B. Impact on Small Entities
C. Submission to Congress and the General Accounting Office
D. Executive Order 12866
E. Unfunded Mandates Reform Act of 1995
IV. Statutory Authority and Background
A. Statutory Authority
Authority for the actions set forth in this rule is granted to EPA
by sections 203, 204, 205, 206, 207, 208, 213, 215, 216, and 301(a) of
the Clean Air Act as amended (42 U.S.C. 7522, 7523, 7524, 7525, 7541,
7542, 7547, 7549, 7550, and 7601(a)).
B. Background
Pursuant to section 213(a) of the Clean Air Act as amended
(hereafter, ``CAA''), EPA undertook a study of emissions from nonroad
engines and vehicles to determine whether such emissions are
significant contributors to ozone or carbon monoxide (CO)
concentrations in more than one nonattainment area. A nonattainment
area is a specified area that has failed to attain the applicable
National Ambient Air Quality Standard (NAAQS) for a given pollutant.
Based on the 1991 Nonroad Engine and Vehicle Emission Study (available
in the docket) 1, EPA determined that emissions of CO, oxides of
nitrogen (NOX), and volatile organic compounds (VOC) from nonroad
engines, equipment, and vehicles do, in fact, contribute significantly
to ozone and CO concentrations in more than one NAAQS nonattainment
area. This significance determination was finalized on June 17, 1994
(59 FR 31306) and is incorporated by reference into this final
rulemaking.
---------------------------------------------------------------------------
\1\ EPA Publication Number 211A-2001 (November, 1991).
---------------------------------------------------------------------------
Under section 213(a)(3) of the CAA, EPA is required to regulate
those categories or classes of new nonroad engines, equipment, and
vehicles that in EPA's judgement cause or contribute to ozone and CO
concentrations in more than one nonattainment area. On November 9,
1994, EPA published a Notice of Proposed Rulemaking (NPRM) establishing
emission standards for new gasoline spark-ignition (SI) and diesel
compression-ignition (CI) marine engines pursuant to section 213(a) of
the CAA.2 On February 7, 1996, EPA published a Supplemental Notice
of Proposed Rulemaking (SNPRM).3 In the course of the comment
period for the NPRM, some commenters suggested that EPA consider new
approaches to some of the items addressed in the proposal; also, it
became apparent that some aspects of the proposed regulation were not
addressed in sufficient detail in the NPRM and needed additional
development for further comment. The SNPRM sought to address these
matters.
---------------------------------------------------------------------------
\2\ 59 FR 55930 (November 9, 1994).
3 61 FR 4600 (Feb. 7, 1996).
---------------------------------------------------------------------------
EPA has determined that gasoline SI marine engines cause or
contribute to ozone concentrations in more than one nonattainment area
(See Chapter 3 of the RIA). EPA is finalizing emission standards today
for gasoline SI marine engines. For gasoline marine engines, the
primary pollutants affected by this rule are hydrocarbons (HC), which
are a primary component of VOCs. EPA is deferring finalization of
emission standards for diesel CI marine engines until a later
rulemaking.
The gasoline SI marine engine HC emission standards should decrease
HC emissions from such engines by approximately 75 percent from
projected baseline emission levels by the year 2025. Due to the long
lives of a small portion of marine engines, EPA does not anticipate
that complete fleet turnover will occur until around the year 2050.
V. Requirements of the Final Rule--Overview
Beginning in 1998, manufacturers of brand new SI gasoline marine
engines used in outboards, personal watercraft, and jetboats must
comply with this rule. This rule does not regulate in any way boat
engines which already are in use.
Today's rule imposes different requirements for the subcategory of
outboard, personal watercraft and jetboat (OB/PWC) engines than for the
subcategory of sterndrive and inboard engines (SD/Is). Outboards,
personal watercraft, and jetboat engines are the engines that EPA is
most concerned about from the standpoint of pollution because they
currently utilize, for the most part, 2-stroke technology that emits
high rates of HC exhaust emissions. Current, unregulated, SD/Is are far
cleaner than OB/PWC. The result of this regulation will be that OB/PWC
engines will be dramatically cleaner: They will be near the lower
emission levels exhibited by today's SD/I engines. By imposing emission
standards on only OB/PWC engines, EPA will achieve the greatest degree
of emissions reduction achievable from new gasoline SI marine engines
as a whole through the application of technology, taking cost
(including cost to boaters) and other factors into account. See 42
U.S.C. 7545(a)(3). Further discussion of EPA's rationale for not
regulating SD/I engines is provided in Section V below.
The engine technology changes resulting from this regulation will
be profound. The new generation of OB/PWC engine technology will not
only be more environmentally friendly, but will provide boaters with
many performance advantages. First, and most important for the
environment, the new generation of OB/PWC engines will be much cleaner.
However, the engines will also be easier to start, have improved
performance, faster acceleration, and less noise. Boaters will realize
hundreds of dollars in fuel savings due to significant fuel economy
improvements. With the new fuel systems and engine designs, the hassle
of mixing fuel and oil will be gone. As an added benefit to the boat
owner, the emissions performance of the new generation of marine
engines will be guaranteed by a three year or 200 hour warranty. These
points are outlined below in Table 1.
Table 1.--Benefits of New Technology OB/PWC Marine Engines
Less pollution.................................. Stringent exhaust
emission standards,
cleaner exhaust.
Higher Performance.............................. Easier to start
engine, better
throttle response,
smoother idling, and
faster and smoother
acceleration.
[[Page 52090]]
Better Fuel Economy............................. Boaters will use over
30% less fuel for the
same amount of
boating.
A Better Boating Experience..................... Less blue smoke, less
smelly fumes, and
less noise.
Less Hassle Refueling........................... Eliminates the hassle
of measuring or
guessing the proper
amount of oil when
refueling, no pre-
mixing fuel and oil.
------------------------------------------------------------------------
Provided below is an overview of the major program elements of the
gasoline marine engine rule finalized today. For a full discussion of
the significant comments received on this rulemaking and EPA's reasons
for finalizing the rule as set forth today, the reader should refer to
the Summary and Analysis of Comments document available in the docket.
A. Outboard, Personal Watercraft, and Jetboat Engines
Outboards and personal watercraft (i.e., Jet Skis, Wave Runners,
etc.) are defined in 40 CFR 91.3. For purposes of this rulemaking,
jetboats are considered personal watercrafts and are subject to the
pollution control requirements outlined here for OB/PWC unless derived
from sterndrive and inboard type marinized automotive blocks. The
Administrator may designate a jetboat engine to be a sterndrive or
inboard type of engine if the engine is comparable in technology and
emissions to an inboard or sterndrive engine.
B. Emission Standards
The emission standards finalized today for outboards, personal
watercraft, and jetboats require a very large reduction in hydrocarbon
emissions on a brake specific basis (i.e., g/kw-hr) with only a slight
increase in NOX emissions. The standards vary by rated power and
apply to a manufacturer's entire fleet. The standards require
increasingly stringent HC control over the course of a nine-year phase-
in period beginning in model year 1998. By the end of the phase-in,
each manufacturer must meet an HC+NOX emission standard on a
corporate average basis that represents a 75 percent reduction in HC
compared to unregulated levels. EPA's administrative program
requirements are designed to ensure that the targeted reductions
actually occur by making manufacturers responsible for testing engines,
reporting the results to EPA, and demonstrating compliance with the
emission standards. The administrative program requirements are
described below in section C.
Corporate average standard: The gasoline marine emission standard
finalized today is an average emission standard meaning that the
manufacturer's product line of outboards and personal watercraft must
comply with the emission standards on a corporate average basis. The
corporate average emission standard structure helps to make the
standard technologically achievable by offering manufacturers
flexibility in achieving the HC reductions required. Further, the
structure minimizes cost by allowing the manufacturers and the market
to determine the best way to achieve the targeted reductions over time.
EPA sets the standards that apply to the engines in the manufacturer's
new sales fleet, which in effect sets the required reduction in the
manufacturer's corporate average emission level. The manufacturer
determines on its own what type of control technology to apply to which
engines. This flexibility is essential because the emission standard
will require revolutionary technology that does not currently exist
across the product line, the leadtime for implementation is short, and
targeted reductions across the phase-in are large. Additionally,
uncertainty exists regarding the viability and durability of control
technology because prototypes have not yet been designed for many
current engine models. Averaging means that an engine family in a
manufacturer's product line could be certified to an emissions level in
excess of the applicable emission standard, so long as its excess
emissions are offset by an engine family that is certifed to an
emissions level below the applicable emission standard. In other words,
any emissions in excess of the average emission standard must be
balanced by emissions lower than the average emission standard.
Full actual life emissions are taken into account when calculating
this balance. The calculation includes:
The difference between the applicable emission standard
and the engine family emission limit (FEL),
Sales in the applicable model year,
Average annual use in hours,
The power output of the engine family,
The future survival probability of each engine,
The net present value of the credits over time.
If a FEL is above the applicable emission standard, then the engine
family is generating negative credits. Conversely, if the FEL is below
the applicable emission standard then the engine family is generating
positive credits. After the negative and positive credits are added up
across the manufacturer's product line, the manufacturer must have a
net positive or zero emission credit balance.
Nine-year phase-in: The applicable emission standards are phased-in
beginning in the 1998 model year and fully implemented in the 2006
model year. A phase-in of the emission standard is necessary to help
make the standard technologically achievable. For example, a
manufacturer may gradually phase-in new technology accross its product
line instead of changing all of its product line in a single year. This
allows the manufacturer needed flexibility to apply the unproven
control techonology in a systematic way, given concerns regarding
control technology viability and durability. The applicable emission
standard for each year of the phase-in is calculated in reference to a
baseline curve which describes, on average, the current emission rates
of the entire power output range (e.g., 2 horsepower to 300 horsepower)
of unregulated OB/PWC engines. EPA's standard structure requires
manufacturers to reduce brake specific (i.e., g/kw-hr) HC emissions by
at least 75 percent in 2006, the final year of the phase-in.
HC+NOX emission standard: The numerical values of the
applicable emission standards are described in detail below and in
section 91.207 of the regulatory text. As proposed in the SNPRM, EPA is
finalizing an HC+NOX average emission standard which retains the
75 percent reduction in HC emissions and the 6.0 g/kw-hr NOX level
in 2006 and later years proposed in the NPRM. This standard will take
the form of an HC+NOX function that becomes more stringent each
year for a nine year phase-in period. This function results from
reducing baseline HC emissions to at most 25 percent of the
uncontrolled level while allowing an increase of NOX from 2.0 to
6.0 g/kw-hr incrementally over nine years. Some NOX increase is
technologically inevitable if HC reductions of 75 percent or more are
to be achieved. The expected increase in total NOX emissions from
these engines is small compared to the large HC inventory reductions.
[[Page 52091]]
The following formulas and tables summarize the HC+NOX
emission standard for each rated power of the engine family as
finalized for OB/PWC:
[GRAPHIC] [TIFF OMITTED] TR04OC96.000
HCbase=hydrocarbon base average level in g/kw-hr
P=rated power of the engine family in kilowatt (kw).
[GRAPHIC] [TIFF OMITTED] TR04OC96.001
NOXbase=oxides of nitrogen base average level
To determine the HC+NOX level for the base year, HCbase
and NOXbase are added. HC and NOX are both changed to their
final year level in equal increments. To calculate the HC+NOX
standard for a given model year and rated power, use Table 2 and the
following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.002
HC+NOX=emission standard in a given model year in g/kw-hr
A=hydrocarbon reduction factor based in a given model year.
B=NOX level factor in a given model year
C=maximum HC+NOX average, in g/kw-hr, in a given model year
Table 2.--OB/PWC Engines
[Factors for calculation of HC+NOX emission standard]
------------------------------------------------------------------------
Model year A B C
------------------------------------------------------------------------
1998......................................... 0.917 2.44 278
1999......................................... 0.833 2.89 253
2000......................................... 0.750 3.33 228
2001......................................... 0.667 3.78 204
2002......................................... 0.583 4.22 179
2003......................................... 0.500 4.67 155
2004......................................... 0.417 5.11 130
2005......................................... 0.333 5.56 105
2006 and after............................... 0.250 6.00 81
------------------------------------------------------------------------
The HC+NOX standard for PWC does not go into effect until
1999. At this time, PWC engines will be required to meet the same
standard as OB engines. Initially, OB and PWC are in separate averaging
sets; however, beginning in 2001, OB and PWC enter the same averaging
set.
No carbon monoxide standard: EPA is not finalizing the carbon
monoxide (CO) cap, proposed in the NPRM, of 400
g/kw-hr for OB/PWC gasoline marine engines. See the Summary and
Analysis of Comments for a discussion of this issue.
C. Administrative Programs
In recognition of the unique nature of the marine industry, EPA is
finalizing some innovative administrative programs for OB/PWC. EPA
believes the OB/PWC programs introduced here are appropriately designed
for OB/PWC compliance demonstration because of the market structure and
smaller size of the marine engine industry and the nature of the
technology used.
EPA has taken a cradle-to-grave approach to the emission
performance of the manufacturer's product line. EPA's goal is to
promote high quality engine design, production, and in-use emission
performance through a system of manufacturer based testing programs.
These innovative compliance programs will encourage the gain and use of
emission information, allowing the manufacturer and EPA to better
understand the emissions of an engine family. EPA wants the
manufacturers to quickly climb the learning curve with respect to the
emissions performance of their engines. This approach uses a cycle of
evaluation, learning, and incorporation of information on emission
characteristics to promote the production of high quality marine
engines that achieve significant reductions in emissions throughout
their useful lives.
The individual elements of the compliance program are described
below. These individual elements are interactive. For example, the
certification program entails estimation by the manufacturer of the
emission performance of the engine family once it is in production and
throughout its useful life. The production line testing program
provides information to the manufacturer, prior to introduction of the
engine into commerce, on how well the manufacturer is producing the
engine from an emission perspective. It is in essence a quality control
program which encourages the manufacturer to develop accurate emission
estimates for certification and make corrections to the certification
data when the previous estimates were found to be in error or to take
action on its own to keep the emission quality within limits, such as
the institution of appropriate production line changes. When the
manufacturer cannot make production line changes, the manufacturer may
change the engine family emission limit (FEL) so long as the
manufacturer can maintain corporate average compliance with the
emission standards.
Additionally, the in-use testing program provides significant
information on how well the emission quality of the engines is holding
up in actual use. If an engine family's emissions are higher and worse
on average than its FEL, EPA allows the manufacturer to balance those
exceedances with credits from other engine families that had better in-
use emission performance on average than their respective FELs.
The gasoline marine administrative programs focus on incentives
toward compliance, flexibilities to achieve targeted reductions, and
the spread of
[[Page 52092]]
knowledge to facilitate emission quality improvements. By offereing
these incentive, flexibilities, and knowledge, the programs outlined
above, and other details described below, allow gasoline marine engines
to achieve dramatic HC reductions through substantial engine changes
while minimizing cost. Additionally, EPA has carefully constructed the
requirements to minimize the information collection requirements. The
information required elicits only the amount of information that would
be useful to the manufacturers in producing high quality emission
performance, and is complete enough to assist EPA in performing its
responsibilities to monitor and enforce compliance to the requirements
of this rule. To facilitate evaluation of this information, EPA is
developing an interactive, computer-based compliance monitoring system
that will take advantage of the latest technology available to lower
compliance monitoring costs for both the manufacturers and EPA.
EPA expects that the administrative programs for gasoline marine
engines finalized here will work well and ensure compliance, that
manufacturers will pursue compliance in good faith, and that the
environment benefits in accordance with the targeted reductions.
However, these programs are innovative and are unproven and may not on
their own ensure such results, EPA is maintaining backstop measures
such as selective enforcement auditing and mandatory recall. EPA hopes
that circumstances do not arise that would warrant imposing these
backstop measures.
1. Pre-Production Certification
Under sections 203, 206, and 213 of the CAA, all gasoline marine
engine families must be certified by EPA as meeting applicable emission
standards before they are introduced into commerce (42 U.S.C.
7522(a)(1), 7525(a)(1), 7547(d)). In order to meet this requirement,
manufacturers must submit an Application for Certification that
identifies the engine family emission limit (i.e., FEL). If the engine
family conforms to the applicable requirements, EPA issues a
certificate of conformity. This certificate of conformity allows the
manufacturer to introduce the engine family into commerce.
Compliance is on a corporate average basis as explained above in
section B with respect to the emission standards. Therefore, at the end
of the model year, the manufacturer must have a net positive or zero
emission credit balance to be in compliance. In addition, each engine
family must comply with its certification FEL. If the manufacturer is
not in compliance, EPA is authorized under sections 206(b) and 213(d)
to suspend or revoke the applicable certificates of conformity.
As this regulation is somewhat unique with respect to the emission
standards and the way in which they are phased-in, EPA is finalizing
some flexibilities for manufacturers during the early years of the
phase in of emission standards to help manufacturers convert to the new
emission control technology as soon as possible while minimizing cost.
Some unique aspects include phasing in the emission standard by
targeted percentage emission reduction targets and requiring the entire
product line to be included in the average during the phase-in. EPA
believes that focusing the manufacturers investments on the new
technology that will be introduced, rather than on existing technology
that will be phased out of production anyway, will promote greater
emissions reductions over time. Also, some flexibilities add extra
incentive toward earlier than required reductions (e.g., early
banking). As the phase in progresses, however, these flexibilities
cease so that there is not an inadvertant incentive toward the
continuing production of the higher emitting existing technology. As
the program is phased-in, some requirements are brought in to
strengthen the overall corporate average and ensure the numerical
integrity of the reduction targets, for example, by requiring test
results rather than the baseline curve to identify existing technology
FELs. At the end of the phase-in, it is important that all engine
families have equivalent requirements so as to ensure that the cleanest
technology is promoted. The compliance flexibilities for the early
years of the program are described below.
i. Beginning of Emission Standard Phase-In
Several important flexbilities and provisions exist in the
beginning of the emission standard phase-in period, as follows.
Averaging sets: EPA is separating the averaging sets in the
beginning of the emission standard phase-in but is finalizing a single
averaging set for model year 2001 and later. EPA thinks the flexibility
afforded by a single averaging set will greatly facilitate the most
cost-effective emission reductions over the phase-in period.
The averaging sets for personal watercraft and outboards are split
for the first three years of the phase-in. In other words, EPA is
restricting the use of any positive personal watercraft credits being
used to offset negative outboard engine credits and vice versa before
the model year 2001. This initial split in the averaging sets will
assure that in the early years of the program, control technology is
being applied to both personal watercraft and outboard engines.
If the sets were not split, the possibility would exist that
control could be disproportionately applied to one type of engine over
the other across the market. Some manufacturers have expressed support
for split sets in the early years of the program because they are
concerned with potential negative competitive effects of
disproportionate application of control technology. EPA is more
concerned with maintaining a single averaging set for OB/PWC in the
long term because it promotes economic efficiency and will minimize
consumer cost in achieving the significant HC reductions contemplated
in this rule.
Therefore, the early years of split ABT sets assures that control
technology is applied to both types of engines and mitigates some
manufacturers' concern over anti-competitive effects. Yet, limiting
this restriction to only the first few years of the program assures
that in the long run the market is encouraged to take advantage of the
most cost-effective emission reductions across the new sales fleet.
Early banking: The early banking flexibility allows manufacturers
to certify their entire product line before the implementation date of
this rule. The manufacturers would then receive a portion of their
emissions reductions as banked credits to be used in future years. This
flexibility allows manufacturers to ease their transition into meeting
tighter emission standards over time. Most importantly, EPA achieves an
air quality benefit that would not have otherwise been achieved because
a portion of the credits generated for environmental benefit is
retained. The value of the banked credits provides an incentive for
manufacturers to introduce clean technology earlier than required.
EPA will allow engines in the outboard averaging set to potentially
earn credits for model year 1997. To generate credits, a manufacturer
must meet the 1998 model year emission HC+NOX reduction target on
a corporate average basis. If the manufacturer meets the 1998 model
year emission reduction target (i.e., 8.3% corporate average
reduction), the manufacturer may bank any credits in excess of half the
1998 model year target (i.e., credits may be banked in excess of a
4.15% corporate reduction target).
[[Page 52093]]
EPA will allow engines in the personal watercraft averaging set to
potentially earn credits for model years 1997 and 1998. Although
personal watercraft are not required to attain reductions until the
1999 model year, EPA is finalizing early banking provisions because EPA
thinks extra flexibility is needed when the standards are first
implemented to facilitate adoption of control technology, due to the
additional packaging constraints that personal watercraft manufacturers
must address. In keeping with the policy for outboard early banking
credits, if the manufacturer meets the 1998 model year emission
reduction target (i.e., 8.3% corporate average reduction), the
manufacturer may bank any credits in excess of half the 1998 model year
target (i.e., credits may be banked in excess of a 4.15% corporate
reduction target).
In addition, for model year 1997, EPA will allow PWC manufacturers
to bank any credits in excess of half the 1998 model year reduction
target (i.e., credits may be banked in excess of a 4.15% corporate
average reduction target). However, for 1997, PWC manufacturers do not
have to meet the 8.3% reduction target. EPA is relaxing this aspect for
1997 model year PWC early banking because EPA thinks it will be
signficantly more difficult for PWC manufacturers to apply control
technology in 1997 due to packaging constraints. However, outboard
manufacturers do not have the same difficulties as PWC manufacturers in
applying control technology and therefore are required to exceed a 8.3%
corporate reduction to gain 1997 early banking credits.
Multi-year averaging: EPA will allow manufacturers who cannot
adequately cover the negative emission credits in their product line
for certification either in model year 1998 or 1999 to make up the
required reductions by model year 2000. EPA will allow a maximum of 30%
of the 1998 model year or 20% of the 1999 model year required
reductions for outboards to be made up by the 2000 model year. EPA will
allow a maximum of 50% the 1999 model year required reduction for PWC
to be made up by the 2000 model year.
As the implementation of these emission standards begins relatively
early (i.e., effectively less than one model year after this notice),
this flexibility is needed because it will be challenging for the
manufacturers to meet the targeted reduction. However, EPA's concern
about foregone benefits associated with noncompliance is mitigated
because the manufacturers must remediate these foregone benefits in the
future. Thus, EPA is allowing a needed flexibility while at the same
time ensuring that there are no foregone benefits.
Existing technology flexibilities: Resources in this industry are
scarce. Therefore, directing manufacturers investment towards future
technologies will promote greater emission reductions overall. The
focus of manufacturer investment and effort should be on the design,
development, and testing of new, clean technology, rather than on
existing, uncontrolled technology that will be eliminated anyway.
Therefore, EPA is implementing a simplified certification process for
the existing, uncontrolled engines as well as waiving some post-
certification requirements. EPA thinks these flexibilities offer the
right balance between assuring the manufacturers are achieving the
targeted reductions and optimizing investment in the control technology
of the future.
``Existing technology'' OB/PWC engine families are considered to be
those engines in production for the 1997 or previous model years that
do not utilize newer technologies. The simplified certification process
for these engines will involve reduced data submission requirements.
Another flexibility concerns the acceptance of alternative test
data. In the beginning of the certification program, there will be many
existing technology engine families in the manufacturers' product
lines. As testing facilities are somewhat limited and manufacturers
must begin a concentrated effort to design, certify, produce, and sell
new technology engines, EPA will allow manufacturers to use surrogate
data (e.g., previous test results or the baseline curve) to estimate
the FEL's of existing technology engine families. However, as
compliance is on a corporate average basis, it is important that FEL's
be adequately estimated in order to ensure the targeted emission
reductions are achieved. Therefore, EPA will require that by the end of
model year 2000, all engine families have certification quality test
results to represent the FEL's. Further, EPA is requiring that
manufacturers retroactively apply this data to any existing technology
engine families that previously used other data (e.g., previous test
results or the baseline curve) in model years 1998, 1999, or 2000 for
credit calculation purposes, and by the end of model year 2000 must
make up any credit shortfalls that may exist from model year 1998,
1999, and 2000.
Finally, EPA is offering existing technology engines exemptions
from the regulations promulgated today for production line testing,
selective enforcement auditing, and in-use testing; as well as
regulations for emission defect reporting, reporting of voluntary
emissions recalls, and warranty provisions (all of these post-
certification programs are described below). These flexibilities will
be available through the 2003 model year, unless the manufacturers
commits to a specific schedule on ceasing production of the existing
technology engine family by the end of model year 2005 and EPA approves
continued production until then.
ii. Stabilization of Certification Program
Beginning in model year 2001, all engine families must have FELs
adequately identified by certification quality test data. Thus, by the
end of model year 2000, all existing technology engine families that
had FELs based on other data (e.g., previous test results or the
baseline curve) must be in compliance in model year 2000 with credits
that reflect a revised FEL adequately identified by certification
quality test data. EPA refers to this process as a ``true-up'' of the
corporate average reduction levels, such that FELs and credit balances
for model years 1998-2000 will be based on actual test data.
Beginning in model year 2004, any existing technology engine family
that the manufacturer intends to continue producing will be required to
meet the full range of administrative requirements. With the exception
of existing technology engine families that the manufacturer commits to
discontinue by the end of model year 2004 or 2005 (and EPA approves),
the certification process is augmented with production line testing,
in-use testing, emission-defect reporting, and defect warranty
requirements.
2. Production Line Testing and Compliance
As proposed, EPA is finalizing an innovative quality control
program in which the manufacturer monitors the emissions quality of
engine families with respect to the engine family emission limit (FEL)
that the manufacturer chooses for certification. In essence, this
program assures EPA and the manufacturer that the engines are being
built as designed.
EPA is finalizing the marine engine production line testing program
for the reasons described below, as well as the reasons cited in the
NPRM and SNPRM. Under this emission compliance program, manufacturers
test engines as they leave the production line. The
[[Page 52094]]
statistical procedure employed in this program will enable
manufacturers to select engines at appropriate sampling rates for
emission testing.
This program is different than the approach EPA uses for other
mobile sources, such as on-highway motor vehicles. The more traditional
approach relied on for assuring that the engines are produced as
designed for other mobile sources is called Selective Enforcement
Auditing (SEA). In the SEA program, EPA audits the emissions of new
production engines by requiring manufacturers to test engines pulled
off the production line upon short notice. This spot checking approach
relies largely on the deterrent effect: The premise is that
manufacturers would design their engines and production processes and
take other steps necessary to make sure their engines are produced as
designed and thereby avoid the penalties associated with failing SEA
tests, should EPA unexpectedly do an audit.
EPA has taken a different approach in the marine engine production
line testing program: This program implements a more flexibly organized
testing regime that acts as a quality control method that manufacturers
will proactively utilize and monitor to assure compliance.
Manufacturers will continue to take steps to produce engines within
statistical tolerances and assure compliance aided by the quality
control data generated by PLT which will identify poor quality in real
time.
As proposed, EPA is employing a statistical procedure known as the
Cumulative Sum (CumSum) Procedure in the Production Line Testing
Program that will enable manufacturers to select engines at appropriate
sampling rates for emission testing and will determine whether
production line engines are complying on average with emission
standards. CumSum procedures are used for the detection of changes in
the average level of a process; this procedure is useful both as an
assessment tool for EPA and a quality control tool for engine
manufacturers. The procedure is capable of detecting significant
changes in the average level of a process, while ignoring minor
fluctuations that are simply acceptable variation in the process.
EPA will also finalize a SEA program that will serve as a backstop
measure should the marine engine production line testing program become
problematic. For example, if EPA became aware of reporting fraud or
improper testing procedures, it would be appropriate for EPA to perform
selective enforcement audits to assure compliance. Additional reasons
for SEA are discussed in the proposal and supplemental proposal.
Should production line or SEA testing show that an engine family is
not complying with its FEL, EPA may suspend or revoke the engine family
Certificate of Conformity in whole or in part. Before the suspension or
revocation goes into effect, EPA will work with the manufacturer to
facilitate approval of the required production line remedy in order to
eliminate the need to halt production if possible. To have the
certificate reinstated subsequent to a suspension, or reissued
subsequent to a revocation, the manufacturer must raise the FEL for the
applicable production engines or demonstrate by showing passing data
that improvements, modifications, or replacement have brought the
engine family into compliance with the existing FEL. If the
manufacturer raises the FEL, all data accumulated during the model year
but prior to the FEL change would be recalculated with the new FEL,
including the certification credits.
Under the final rule, EPA may allow FEL changes to engines
previously produced based on PLT testing. EPA is adopting this more
flexible approach for this rulemaking as a pilot program provision.
This rulemaking is an appropriate place to try this provision because
the total scope of the marine requirements include a fairly
comprehensive production line testing and in-use testing program based
on the principle of gaining more and better emission information upon
which to determine compliance. EPA will monitor manufacturers' use of
FEL changes and may implement appropriate regulatory changes if
manufacturers are attempting to change FELs to levels that do not
provide adequate assurance of in-use emission levels (e.g., ``shaving
FELs'') or gaming the system to skew certification credits at the
expense of or to the benefit of in-use credits.
While EPA may allow FEL changes to apply to engines previously
produced based on PLT data and Administrator approval, EPA has not
allowed this for Selective Enforcement Auditing (SEA) or as an
alternative to recall in the past for other mobile sources and is not
allowing it for SEA or as an alternative to recall of gasoline marine
engines either. Allowing FEL changes to be made on engines previously
produced in this rulemaking does not imply that it will be preferred
for other rulemakings, SEA, or as an alternative to recall in the
future. EPA thinks it important that the deterrent effect of the SEA
and recall programs be maintained. Therefore, exceedance of the FEL in
an SEA may be the basis for recall and exceedance of the FEL in use may
be the basis for recall or the use of the in-use credit program.
Both the production line testing and SEA programs are authorized
under section 206(b) of the CAA, 42 U.S.C. 7525(b). This provision of
the CAA authorizes EPA to test new production engines to determine
whether such engines do in fact conform to the emission standards with
respect to which the certificate of conformity was issued. In addition,
the Agency may require that a manufacturer test the engines in
compliance with conditions specified by EPA. Further, section 208(a)
directs manufacturers to establish and maintain records, perform tests
where such testing is not otherwise reasonably available under Part A,
Title II, of the CAA, make reports, and provide information that the
agency may reasonably require to determine whether the manufacturer has
complied with applicable emission standards. 42 U.S.C. 7542(a).
3. In-Use Testing and Remediation
As proposed, EPA is finalizing a manufacturer's in-use testing
program. This testing will provide information regarding the in-use
emission performance of engines in relation to the expected in-use
performance to which the engines were designed and built. Further, the
Agency is allowing manufacturers to engage in averaging, banking and
trading of in-use emission credits to reconcile the in-use test results
as an alternative to mandatory recall. Positive emission credits may be
generated from an engine family whose average in-use emission
performance is lower than its FEL and may be used to offset in-use
emission performance in excess of the FEL by another engine family
discovered through the in-use testing program. Based on such use of
credits, EPA would plan on not making a determination that a
substantial number of engines in the engine family fail to conform with
the applicable standards.
Manufacturer based in-use testing is advantageous because it is an
innovative method of gaining acceptable knowledge of in-use engine
emission performance. Further, the in-use credit program allows for an
expedient and appropriate remediation under the circumstances. An
alternative to mandatory recall is also necessary based on the limited
ability to conduct effective recalls as discussed in more detail below.
In the more traditional approach, EPA focuses on targeted audit testing
wherein the deterrent threat of recalling and fixing engines is
designed
[[Page 52095]]
to provide incentive to manufacturers to ensure engines comply in-use.
EPA is finalizing the recall provisions as a backstop measure, yet is
hopeful that the new approach of the in-use testing program and in-use
credit program is effective and obviates the need for the Agency to
consider the recall provisions.
i. In-Use Testing Program
This program contains elements designed to minimize the burden on
the industry while maintaining a strong incentive to build engines that
meet applicable standards when in actual use. Gasoline marine engine
manufacturers will be subject to an in-use testing period of up to 10
years or 350 hours (whichever occurs first), except for personal
watercraft, which would be 5 years or 350 hours of operation (whichever
occurs first).
The in-use testing program provides that a portion of a
manufacturer's engine families will be tested each year and provides
for greatly reduced testing if the initial engines are in compliance.
Manufacturers may establish different fleets of engines for their in-
use testing program. Each engine within a fleet must have experienced
conditions that are representative of actual in-use conditions. EPA
will provide guidance for manufacturers in establishing proper
maintenance practices for their in-use testing program.
Under this program, the manufacturer will have certain discretion
to establish its own in-use testing program within EPA's guidelines.
For example, EPA may designate a certain engine family to be tested for
a particular model year. At that time, the manufacturer can determine
when and where the in-use testing will take place at its own
facilities.
In-use compliance with emission standards will be determined based
on test results using the same test procedure as that used in
certification. The in-use testing program is authorized under section
208(a) of the CAA, 42 U.S.C. 7542(a). Section 208(a) directs
manufacturers to establish and maintain records, perform tests where
such testing is not otherwise reasonably available under Part A, Title
II, of the CAA, make reports, and provide information that the agency
may reasonably require to determine whether the manufacturer has
complied with applicable emission standards. 42 U.S.C. 7542(a).
ii. In-Use Credit Program
EPA is finalizing the marine engine in-use credit program which is
designed to reduce compliance cost without reducing environmental
benefits. The program provides manufacturers with flexibility in
addressing potential in-use noncompliance in a way that EPA agrees
would avoid the need for a determination of nonconformity under section
207(c) of the Act, and thereby avoid a recall. As proposed,
participation in this program is voluntary.
The flexibility that this program provides is appropriate given the
particular circumstances of the marine engine industry. In the event
that engine families fail in-use testing, EPA believes that recalling
the nonconforming engines would be particularly burdensome and
impractical for this industry, mainly due to the difficulty of tracking
the nonconforming engines. If registration with a government entity
occurs, it is the vessel that is registered, not the vessel's engine;
manufacturers of marine engines do not typically know in what vessels
their engines are installed. Tracking the engines would thus be
cumbersome and difficult, especially because manufacturers estimate
that the owner moves or the vessel is typically sold about four years
after the initial purchase. Therefore, recalling the engines would
likely require substantial resources, yet not be highly effective in
actually remedying the excess emissions.
The Agency has the authority to promulgate this in-use credit
program under the circumstances. The CAA provides that the marine
engine emission standards, when finalized, shall be subject to section
207 of the Act, ``with such modifications of the applicable regulations
* * * as the Administrator deems appropriate.'' 42 U.S.C. 7547(d).
Section 213 requires engines to comply with emission standards when in
actual use throughout their regulatory useful lives, and section 207
requires a manufacturer to remedy in-use nonconformity when EPA
determines that a substantial number of properly maintained and used
engines fail to conform with the applicable emission standards. 42
U.S.C. 7541. Once EPA makes this determination, recall would be
necessary to remedy the nonconformity. However, under the circumstances
here, where OB/PWC marine engines use ABT to comply with the emission
standards at certification and it is expected that recall would be
impractical and largely ineffective, it is appropriate not to make a
determination of substantial nonconformity where a manufacturer uses
ABT to offset in-use noncompliance. Thus, the CAA offers EPA the
discretion to not make a section 207(c) determination of substantial
nonconformity where a marine engine manufacturer uses ABT to offset any
noncompliance with the statute's in-use performance requirements.
Though the language of section 213(d) is silent on the issue of
averaging, it allows EPA considerable discretion in determining what
modifications to the on-highway regulatory scheme are appropriate for
nonroad engines.
In-use credits are based upon in-use testing conducted by the
manufacturer. For a given engine family, the in-use compliance level
(CL) is determined by averaging the results from in-use testing
performed for that engine family. If the in-use CL is below the
applicable FEL to which the engine family is certified, the
manufacturer will generate in-use credits for that engine family. If
the in-use CL is above the applicable FEL, the engine family will
experience a credit deficit. The in-use credit program credits are
calculated in the same manner as the certification credits, except that
the basis is the difference between the CL and the FEL, not between the
FEL and the standard. All other elements of the credit calculation are
the same, including the use of engine family sales, use, sales-weighted
power, load factor, and survival probability.
iii. Recall Provisions
EPA will be actively monitoring and evaluating the results of the
in-use testing and in-use credit programs so as to ensure that it is
unnecessary to utilize the recall provisions. However, if these new,
innovative programs do not produce adequate assurance of corporate in-
use compliance, the recall provisions serve as a backstop that can be
utilized.
EPA expects that remedial action under section 207(c) would be
largely ineffective, both because industry structure and engine owner
turnover make it difficult for a manufacturer to identify the owners of
a nonconforming engine, and because safety recalls of marine engines
have generated little consumer response in the past. This is why the
in-use credit program is an important element of the overall compliance
program. However, despite the difficulties associated with recalling
gasoline marine engines, EPA is finalizing the provisions because the
in-use credit program is a new and unproven type of program to address
in-use compliance and EPA thinks that applying the recall subpart makes
it more direct and expedient to take action if necessary. Section
213(d) of the CAA provides that new nonroad engines ``shall be
subject'' to the provisions of sections 206-209 (42 U.S.C. 7547(d)).
[[Page 52096]]
Under section 207(c) of the CAA the Administrator must require
manufacturers to recall applicable engines if the Administrator
determines that a substantial number of properly maintained and used
engines are tested and found not to conform with applicable emissions
standards when in actual use throughout their useful life. See Center
for Auto Safety v. EPA, 747 F.2d 1 (D.C. Cir. 1984).
As proposed, the useful life and in-use testing period for spark-
ignition marine engines will be for 10 years or 350 hours of operation
(whichever occurs first), except personal watercraft, which would be 5
years or 350 hours of operation (whichever occurs first). The actual
repair period for which a manufacturer must remedy nonconformities
would not be limited by the in-use testing period but by the regulatory
useful life. Thus any resulting recall may apply to all engines of the
recall family within the regulatory useful life at the time EPA makes a
determination of substantial nonconformity. However, the age and hours
of operation of the engine at the time of repair is not relevant. So
long as an engine was within its useful life as of the date of the
nonconformity determination, it is subject to recall repair even if it
has been operated beyond the useful life period at the time the
manufacturer recalls the engine or the repair is performed.
Given the unique nature of the OB/PWC industry, all innovative
compliance program elements described above, and the complications with
recall described above for this industry, EPA thinks it appropriate to
excercise discretion to limit recall repair liability in this rule in
this way. The Agency does not expect limiting the recall repair
liability as described above to affect compliance enforcement or the
emission reductions expected from this rule.4
---------------------------------------------------------------------------
\4\ EPA's authority to impose recall repair liability is broader
than EPA chooses to finalize with respect to the marine final
rulemaking today. See 40 CFR part 85, subpart S, appendix A. See
also GM v. Ruckelshaus, 742 F.2d 1561 (D.C. Cir. 1984) (en banc),
cert. denied, 471 U.S. 1074 (1985). The action taken today is
limited to OB/PWC spark-ignition marine engines and does not affect
the recall repair liability of other mobile sources. Further, it is
based on the unique circumstances cited above.
---------------------------------------------------------------------------
4. Consumer Warranty on Emission Components
In accordance with section 207(a) of the CAA, manufacturers must
warrant to the ultimate purchaser and any subsequent purchaser, for a
specified warranty period set by EPA, that the emission related
components and systems of OB/PWC engines are free from defects in
material or workmanship which would cause such engine to fail to
conform with applicable regulations. The statute also requires
manufacturers to provide a ``time of sale'' warranty that the engine is
designed, built, and equipped so as to conform at the time of sale with
applicable emission regulations. See 42 U.S.C. 7541(a)(1). This
consumer warranty covers both ``major emission control components'' and
``emission related components''. Major emission control components
include such items as catalytic converters, exhaust gas recirculation,
air injection systems, and thermal reactors. Such components have a
significant effect on the emissions of the engine if they are defective
or malfunctioning. Emission related components include such systems and
related sensors as the fuel metering system, ignition system, and air
induction system. These components affect emission performance but are
different from major emission control components in that they are not
designed specifically for emission control.
EPA has decided to phase-in the defect warranty requirements in the
early years of the program, gradually increasing the warranty time
period until in model year 2004 and after the warranty period is 3
years or 200 hours, whichever comes first, for major emission control
components and 2 years or 200 hours, whichever comes first, for
emission related components. For model years 2001, 2002, and 2003,
emission related components need only be covered for 1 year while the
major emission control components, which EPA is most concerned about,
will be warranted for 3 years or 200 hours beginning in 2001. For model
years 2000 and sooner, major emission control components and emission
related components need only be covered for a minimum of 1 year.
Current standard manufacturers warranties of the type this rule
applies to are one year in length. Some manufacturers offer two year
warranties, but this is the exception rather than the norm. The
warranty requirements in this rule double or triple the warranty time
period for those items related to the emission characteristics of the
engine. This warranty will help ensure the manufacturing of a durable
emission system and will require the manufacturer to cover all repairs
and replacements involving emission related components at no cost to
the ultimate purchaser during the warranty period.
5. Manufacturer Reporting of Engines With Emission Defects and
Voluntary Emission Recalls
The Agency is adopting the proposed emission defect reporting
regulations which require a manufacturer to file a defect information
report whenever a manufacturer identifies the existence of a specific
emission-related defect in 25 or more engines manufactured in the same
model year. However, no report would need to be filed if the defect was
corrected prior to the sale of the affected engines to the ultimate
purchaser. Further, manufacturers must file a report whenever a
voluntary emission recall is undertaken.
Reporting of emission defects is important in helping EPA identify
engine families for in-use testing and assisting in resolution of
warranty claims and monitoring misbuilds and other emission quality
issues across manufacturers.
6. Tampering With Emission Components
In accordance with section 203(a)(3)(A), the Agency is adopting
provisions that will prohibit tampering with marine engine emission
components. All persons will be prohibited from tampering with any
emission-related component or element of design installed on or in a
marine engine. Marine tampering provisions will help ensure that in-use
engines remain in certified configurations and continue to comply with
emission requirements. The Agency has applied the existing policies
developed for on-highway tampering to engines included in this rule.
(See Office of Enforcement and General Counsel; Mobile Source
Enforcement Memorandum No. 1A, June 25, 1974.)
7. Engines Excluded or Exempted From Regulations
EPA is adopting the proposed regulations which allow manufacturers
and other persons, where appropriate, to obtain exemptions from
regulation for certain purposes. These purposes include research,
investigations, studies, demonstrations, training, or for reasons of
national security. Export exemptions, manufacturer-owned engine
exemptions, and some national security exemptions are granted without
application. Other exemptions are obtained by application.
Nonconforming engines used solely in competition will be excluded
from this rule. Engines other than those used in competition may be
excluded if the Administrator determines that the exclusion is
necessary because emission
[[Page 52097]]
control modifications would be unsafe, impractical, or highly unlikely
because of features that are not easily removed.
8. Prohibition on Importation of Uncertified Engines Into the United
States
Nonconforming marine engines originally manufactured after the
effective date of this rule, will not be permitted to be imported for
purposes of resale, except as specifically permitted by this action.
This rule provides certain exemptions for various reasons, including
temporary exemptions for repairs and alterations, testing and display,
and permanent importation exemptions for national security and certain
marine engines proven to be identical, in all material respects, to
their corresponding EPA certified versions.
The Agency has decided not to establish an independent commercial
importers (ICI) program for marine engines.
9. Revisions to Small SI (40 CFR part 90) and Large CI (40 CFR part 89)
Regulations--Added Exemptions
EPA is finalizing the provisions, as proposed, regarding exemptions
for other nonroad regulations, including small SI engines and large CI
engines. No comments were received that opposed these provisions. The
exemptions for nonroad categories are now comparable to highway
engines. The finalized provisions include the addition of competition
exclusion and revised criteria for national security exemption.
V. Discussion of Issues
This section of the preamble discusses the two most significant
issues that arose in comments on the NPRM and SNPRM. There are many
important issues that are not discussed here, rather, that are analyzed
in the Summary and Analysis of Comments document. This is a separate
document and is available to the public, as described in the
Supplementary Information section at the beginning of this preamble.
Further discussion of the two issues presented here also appear in the
Summary and Analysis of Comments document.
A. No Sterndrive or Inboard Emission Standards
A sterndrive or inboard (SD/I) engine is an engine which utilizes a
four-stroke, automotive style engine block which has been modified
(i.e., marinized) to facilitate the marine application. The design is
such that the engine (and drive unit in the case of inboard engines) is
internal to the hull of the marine vessel. These current, uncontrolled
SD/I engines are over 85 percent cleaner than existing OB/PWC engines
for HC. With this rule seeking a 75 percent reduction in emissions from
OB/PWC engines on average, these SD/I engines will remain comparatively
cleaner than levels expected to be achieved from regulated OB/PWC by MY
2006.
Section 213(a)(3) directs EPA to establish emission standards for
``classes or categories'' of new nonroad engines which achieve the
``greatest degree of emission reduction achievable through the
application of technology * * *, giving appropriate consideration to
the cost of applying such technology within the period of time
available to manufacturers'' and other factors. 42 U.S.C. 7545(a)(3).
In this rulemaking, EPA is treating all marine spark-ignition engines
as one ``class or category'' of new nonroad engines for which EPA is
establishing emission standards. SD/Is constitute one subclass or
subcategory of the marine SI class or category, while OB/PWC
constitutes another subclass or subcategory. In the SNPRM, EPA
requested comment on two proposals for SD/I emission standards: (1) \2/
3\ MY 2006 OB/PWC HC+NOX cap SD/I emission standard (with the
proposed ``postcard cert'' program) or, (2) no SD/I emission standard.
In general, commenters supported both the SNPRM proposals. After
further analyzing the comments and both options, EPA is finalizing no
SD/I emission standards.5
---------------------------------------------------------------------------
\5\ The Summary and Analysis of Comments document provides a
full discussion of the comments received on this issue.
---------------------------------------------------------------------------
EPA has determined that it is appropriate to impose the HC+NOX
emission standard for OB/PWC described above, and no HC or NOX
standard for SD/I. EPA believes not imposing an emission standard for
SD/I engines achieves greater emission reductions from gasoline marine
engines as a class or category than would imposition of SD/I emission
standards as proposed in the NPRM or SNPRM, and at less cost to the
gasoline marine engine industry as a whole. Because there will be no
costs of regulatory compliance imposed on SD/I engines, these engines
will become relatively cheaper than regulated OB/PWC. This shift in
relative cost is expected to encourage manufacturers to offer a greater
range of SD/I engines, including smaller SD/Is that could compete with
smaller power output OB/PWC. As a result, EPA expects to realize
greater emission reductions from the gasoline marine engine category as
a whole due to some substitution of SD/Is for OB/PWC than would be
expected to occur with the alternative proposals for SD/I emission
standards proposed in the NPRM and SNPRM, and at lesser cost.6
---------------------------------------------------------------------------
\6\ The SNPRM proposal to apply a level of two-thirds of the
final OB/PWC curve would not require manufacturers to physically
change the engines. However, to the extent that an emission standard
imposes costs on SD/I engines, such standards may tend to limit SD/I
substitution for OB/PWC. Therefore, somewhat less emissions
reductions would be obtained than if there were no SD/I standard at
all, while more cost would be imposed on the gasoline marine engine
industry as a whole.
---------------------------------------------------------------------------
In the SNPRM, EPA requested comment on whether the imposition of
SD/I standards at the level proposed in the SNPRM would offer a useful
backstop against emissions backsliding (i.e. worsening of emissions
performance) by SD/I. EPA did not receive any comments suggesting a
concern with potential backsliding. The only comment received indicated
that the risk of backsliding was low because the market is driven by
performance and would already have exhibited backsliding if this
involved a performance increase. Since this is not the case, the
commenter indicated that backsliding was unlikely.
EPA believes that emissions backsliding is not a realistic concern
with SD/I for several reasons. First, these engines have been moving
toward electronic fuel injection technology to gain better control over
engine performance, which may also result in better emission
performance. Second, customer demands for both low odor and low smoke
discourage manufacturers from selling engines that have higher
emissions. Third, emission performance of the engine blocks used in
marine engines is improving because of carryover of on-highway
emission-related block designs.
EPA plans to issue guidance to states that provides information on
the relative emissions from the class or category of gasoline marine
engines. This guidance will explain that EPA is not finalizing emission
standards for the subclass or subcategory of SD/I engines because they
are relatively clean. If at some point in the future it may be
appropriate to regulate SD/I engines, EPA believes it is generally more
efficient to regulate SD/I engines on a national basis. Information
voluntarily provided by industry that exemplifies the emission
characteristics of the fleet of SD/I engines will be included in the
guidance. However, EPA is not requiring the reporting of such
information.
[[Page 52098]]
B. Outboard/Personal Watercraft (OB/PWC) Emission Standards Meet
Statutory Criteria
EPA is finalizing an HC+NOX average emission standard, which
when completely phased-in (model year 2006), will result in at least an
overall 75 percent reduction in HC emissions from OB/PWC compared to
baseline levels. The HC emission reduction will come from the use of
cleaner technologies, such as 2-stroke direct injection, 4-stroke,
catalyst, or other technologies, for OB/PWC.
EPA has determined that this standard for the OB/PWC subcategory,
together with the lack of a standard for SD/I, is appropriate under the
statutory criteria of CAA section 213(a)(3). In selecting emission
standards for new nonroad engines, section 213(a)(3) directs EPA to
establish ``the greatest degree of emission reduction achievable
through the application of technology* * *, giving appropriate
consideration to the cost of applying such technology with in the
period of time available to manufacturers'' and oth
FR Doc. 96-23063 Control of Air Pollution; Final Rule for New Gasoline Spark- Ignition Marine Engines; Exemptions for New Nonroad Compression- Ignition Engines at or Above 37 Kilowatts and New Nonroad Spark- Ignition Engines at or Below 19 Kilowatts
er factors. 42
U.S.C. 7545(a)(3). The Regulatory Impact Analysis and Summary and
Analysis of Comments Document further discuss all issues relating to
the appropriateness of the emission standard according to the statutory
criteria specified in section 213(a)(3), including technology, cost,
noise, energy, and safety factors. In assessing the impact of
techological changes and considering the associated cost impacts, EPA
analyzed the following among other factors.
1. The marginal cost-effectiveness of emission control.
2. Consideration of price elasticity effects.
3. Spreading capital control costs over time.
4. The level of the NOX standard and associated technology
options.
5. The emission standard structure.
Based on this analysis, EPA proposed in the NPRM the OB/PWC HC
standard incorporated into the HC+NOX standard for OB/PWC
finalized in this action.
Some commentors questioned the use of marginal cost-effectiveness
as a consideration in setting the emission standard while other
commenters supported this approach. The language of section 213(a)(3)
does not expressly require EPA to use a cost-effectiveness analysis
when establishing a new nonroad engine standard. However, the language
does give EPA broad latitude to give consideration to the cost of
applying new emission reducing technologies. One option that EPA
retains in giving ``appropriate'' consideration to such cost is to look
at cost-effectiveness (and also price elasticity effects and the spread
of capital control costs over time). EPA thinks it appropriate to take
into consideration marginal cost-effectiveness in setting the gasoline
marine OB/PWC HC+NOX emission standard because it is a reasonable
way to take into account the sensitive financial position of the
industry, the discretionary nature of the purchases and the resulting
impact on emissions, and the magnitude of investment estimated to
reduce exhaust emissions. A further discussion of these issues may be
found in the RIA, the Summary and Analysis, and the two prior
proposals.
Figure 1 shows the marginal cost-effectiveness of control
technology for gasoline marine OB/PWC. This curve represents the
emission reductions, including the tradeoff between HC and NOX,
associated with the cost of control technologies for OB/PWC engine
families. The underlying data is based on manufacturer's best estimates
of control technology options. EPA's analysis of these estimates has
concluded that they are reasonable estimates. To the extent that they
are not exact, EPA nonetheless expects the shape of the curve to remain
consistent. These conclusions are discussed in more detail throughout
the Regulatory Impact Analysis.
EPA has chosen to set the average HC+NOX emission standard at
an HC reduction of 75 percent from baseline levels. EPA believes that
the OB/PWC HC+NOX standard adopted today is appropriately based on
the criteria set out in CAA section 213(a)(3). The standard will
achieve significant reductions from a previously unregulated category,
calling for significant investment to develop and apply the
technological changes needed to achieve these reductions. This
technology will be available, and will not impose undue costs on either
the industry or consumers. Beyond this 75 percent level costs
dramatically rise disproportionately in relation to further reductions.
The marginal cost-effectiveness curve is practically vertical at the 90
percent HC reduction level. EPA believes that a 75 percent reduction
level, at this time, is the appropriate level of reductions based on
all of the criteria found in CAA section 213(a)(3).
BILLING CODE 6560-50-P
[[Page 52099]]
[GRAPHIC] [TIFF OMITTED] TR04OC96.003
BILLING CODE 6560-50-C
[[Page 52100]]
VI. Regulatory Impact Analysis
EPA performed a draft Regulatory Impact Analysis (RIA) for the NPRM
and received comment from the public regarding this draft RIA. Such
comments are discussed in the Summary and Analysis of Comments Document
and in the Regulatory Impact Analysis that was revised for this final
rulemaking. These are separate documents from this preamble and are
available to the public, as described in the Supplementary Information
section at the beginning of this preamble. An extensive discussion of
the emission reduction technology that EPA evaluated may be found in
the RIA.
The cost-effectiveness of the program for OB/PWC engines is
approximately $1000 per ton HC reduced. This number represents EPA's
estimate of the ratio of the net present value of the annualized costs
to consumers to the net present value of the annualized national HC
inventory reduction in tons. These net present values are taken over
the time horizon in which the fleet is expected to fully turn over.
This ratio is relatively low compared to most other HC national
reduction strategies.
EPA expects that average costs for OB/PWC engines will increase
modestly, approximately 10-15%, or approximately $700 on the average
power output engine. These modest increases would potentially be much
larger if EPA had not structured the emission standard and
administrative program provisions with the broadest market
flexibilities possible. This action is designed to provide
manufacturers with the utmost flexibility to find the lowest cost
solutions to meeting the emission reduction targets.
Table 3 shows approximate percent reductions in the national OB/PWC
HC inventory that this regulation will produce. Emission reductions are
achieved via fleet turnover and thus the 75 percent reduction is not
approached until years after the implementation date. The time horizon
for complete fleet turnover is very long for gasoline marine engines,
potentially up to 50 years for some engines.
Table 3.--Projected Inventory Reductions
------------------------------------------------------------------------
Percent
reduction
Year in OB/PWC
HC
inventory
------------------------------------------------------------------------
2000....................................................... 4
2005....................................................... 26
2010....................................................... 52
2015....................................................... 68
2020....................................................... 73
2030....................................................... 75
2040....................................................... 75
2050....................................................... 75
------------------------------------------------------------------------
VII. Administrative Requirements
A. Reporting and Recordkeeping Requirements
The information collection requirements in this 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. EPA prepared
eight Information Collection Request (ICR) documents for the NPRM. Two
ICRs were approved before publication of the SNPRM and new ICRs were
submitted as a result of the revised proposals. Copies of the ICR
documents may be obtained from Sandy Farmer, Information Policy Branch;
EPA; 401 M St., SW. (mail code 2136); Washington, DC 20460 or by
calling (202) 260-2740.
The eight ICR documents that have been prepared are:
------------------------------------------------------------------------
EPA ICR
document Type of information
number
------------------------------------------------------------------------
1722.01.. Certification/AB&T.
282.07... Emission Defect Information.
1723.01.. Importation of Nonconforming Engines.
1724.01.. Selective Enforcement Auditing.
0012.08.. Engine Exclusion Determination.
0095.07.. Precertification and Testing Exemption.
1725.01.. Manufacturers' Assembly Line Testing.
1726.01.. Manufacturers' In-use Testing.
1763..... In-Use Credit Program.
------------------------------------------------------------------------
Each ICR document estimates the public reporting, recordkeeping,
and testing burden for collecting the specified information, including
time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing the
collection of information. EPA estimates that the public burden for the
collection of information for all ICRs under the final rule as a whole
would average approximately 6,900 hours annually for a typical engine
manufacturer. This estimate is based on the revised estimates submitted
as a result of the proposals. The original estimates included estimates
of very low burden for some small manufacturers (such as gasoline SD/I
manufacturers) and smaller estimates for compression-ignition diesel
engine manufacturers that produced a lower average number in the
previous proposals. The hours spent by a manufacturer for information
collection activities in any given year would be highly dependent upon
manufacturer specific variables, such as the number of engine families,
production changes, emissions defects, etc.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch, EPA, 401 M Street, SW. (PM-
223Y), Washington, DC 20460; and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503, marked ``Attention: Desk Officer for EPA.''
B. Impact on Small Entities
EPA has determined that the final regulations do not have a
significant impact on a substantial number of small entities. This is
largely because the final rulemaking does not apply to SD/I or diesel
compression-ignition (CI) engines. As explained in the SNPRM, EPA
proposed many flexibilities for SD/I and diesel CI manufacturers
because of EPA concerns regarding the significant impact on a
substantial number of small manufacturers of SD/I or diesel CI engines.
However, EPA is not finalizing emission standards for SD/I or diesel CI
engines.
EPA does not think the final rule being promulgated will have a
significant impact on a substantial number of small entities primarily
because there is not a substantial number of small OB/PWC manufacturers
which this rule affects. One OB/PWC manufacturer who commented on the
rule may be considered a small entity by virtue of having less than 500
employees for parent company and subsidiaries. EPA suspects that there
is one additional manufacturer that may qualify as a small entity. The
other OB/PWC manufacturers exceed the applicable size standard for the
relevant type of small business as established by the Small Business
Administration. Therefore, it appears that there may be at most two
small entities affected by this rule.
EPA is finalizing many flexibilities for smaller volume OB/PWC
engine manufacturers and smaller volume engine families. Also, EPA has
taken into consideration the potential competitive impacts on some
smaller volume manufacturers in finalizing
[[Page 52101]]
provisions relating to averaging emissions across OB and PWC products.
The Summary and Analysis of Comments addresses these flexibilities and
competitive concerns.
C. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is a ``major rule'' as defined by 5 U.S.C.
804(a).
D. Executive Order 12866
Under Executive Order 12866,7 the Agency must determine
whether the regulatory action is ``significant'' and therefore subject
to review by OMB and the requirements of the Executive Order. The Order
defines ``significant regulatory action'' as one that is likely to
result in a rule that may:
---------------------------------------------------------------------------
\7\ 58 FR 51735 (October 4, 1993).
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(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, the Agency has
determined that this rulemaking is a ``significant regulatory action''
because it may have an annual effect on the economy of $100 million or
more or may adversely affect in a material way that sector of the
economy involved with the production of gasoline marine engines. As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
E. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal intergovernmental mandates (under
the regulatory provisions of Title II of the UMRA) because there are no
enforceable duties on State, local, or tribal governments. However, EPA
has determined that this rule contains a Federal mandate that may
result in expenditures of $100 million or more for the marine industry
in any one year. Accordingly, EPA has prepared under section 202 of the
UMRA a written statement which is included in the Regulatory Impact
Analysis (RIA). A qualitative and quantitative assessment of the
anticipated benefits and costs of this rule is available in the written
statement included in the RIA. In summary, this rule achieves
reductions in HC which will contribute to the reduction of VOCs and
ozone in ozone nonattainment areas throughout the U.S. The cost-
effectiveness of this rule is approximately $1000 per ton HC reduced.
The annualized costs of this rulemaking exceed $300 million in 2006,
which is roughly 7% of projected retail expenditures on OB/PWC in that
year. The average cost for OB/PWC engines will increase approximately
10-15% or $700 on the average power output engine.
EPA identified and considered a range of options in its proposal of
this rule, as described in detail in the NPRM and SPNRM. In finalizing
this rule, EPA has adopted the least costly, most cost-effective or
least burdensome alternative that achieves the objectives of the rule
and complies with the Agency's statutory mandate under section
213(a)(3) of the Clean Air Act.
List of Subjects
40 CFR Part 89
Environmental protection, Administrative practice and procedure,
Air pollution control, Confidential business information, Imports,
Incorporation by reference, Labeling, Nonroad source pollution,
Reporting and recordkeeping requirements.
40 CFR Part 90
Environmental protection, Administrative practice and procedure,
Air pollution control, Confidential business information, Imports,
Incorporation by reference, Labeling, Nonroad source pollution,
Reporting and recordkeeping requirements.
40 CFR Part 91
Environmental protection, Administrative practice and procedure,
Air pollution control, Confidential business information, Imports,
Incorporation by reference, Labeling, Nonroad source pollution,
Reporting and recordkeeping requirements.
Dated: July 31, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 89--[AMENDED]
1. The authority citation for part 89 continues to read as follows:
Authority: Sections 202, 203, 204, 205, 206, 207, 208, 209, 213,
215, 216, and 301(a) of the Clean Air Act, as amended (42 U.S.C.
7521, 7522, 7523, 7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550,
and 7601(a)).
[[Page 52102]]
2. Section 89.2 is amended by revising the definition of ``new'' to
read as follows:
Sec. 89.2 Definitions.
* * * * *
New for purposes of this part, means a nonroad engine, nonroad
vehicle, or nonroad equipment the equitable or legal title to which has
never been transferred to an ultimate purchaser until after the engine,
vehicle, or equipment is placed into service, then the engine, vehicle,
or equipment will no longer be new after it is placed into service. A
nonroad engine, vehicle, or equipment is placed into service when it is
used for its functional purposes. With respect to imported nonroad
engines, nonroad vehicles, or nonroad equipment, the term ``new'' means
an engine, vehicle, or piece of equipment that is not covered by a
certificate of conformity issued under this part at the time of
importation, and that is manufactured after the effective date of a
regulation issued under this part which is applicable to such engine,
vehicle, or equipment (or which would be applicable to such engine,
vehicle, or equipment had it been manufactured for importation into the
United States.
* * * * *
3. Section 89.908 is revised to read as follows:
Sec. 89.908 National security exemption.
(a)(1) Any nonroad engine, otherwise subject to this part, which is
used in a vehicle that exhibits substantial features ordinarily
associated with military combat such as armor and/or permanently
affixed weaponry and which will be owned and/or used by an agency of
the federal government with responsibility for national defense, will
be considered exempt from these regulations for purposes of national
security. No request for exemption is necessary.
(2) Manufacturers may request a national security exemption for any
nonroad engine, otherwise subject to this part, which does not meet the
conditions described in paragraph (a)(1) of this section. A
manufacturer requesting a national security exemption must state the
purpose for which the exemption is required and the request must be
endorsed by an agency of the federal government charged with
responsibility for national defense.
(b) EPA will maintain a list of models of nonroad engines (and the
vehicles which use them) that have been granted a national security
exemption under paragraph (a)(2) of this section. This list will be
available to the public and may be obtained by writing to the following
address: Group Manager, Engine Compliance Programs Group, Engine
Programs and Compliance Division (6403J) Environmental Protection
Agency, 401 M Street SW, Washington, DC 20460.
PART 90--[AMENDED]
4. The authority citation for part 90 continues to read as follows:
Authority: Sections 203, 204, 205, 206, 207, 208, 209, 213, 215,
216, and 301(a) of the Clean Air Act, as amended (42 U.S.C. 7522,
7523, 7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550, and 7601(a)).
5. Section 90.903 is revised to read as follows:
Sec. 90.903 Exclusions, application of section 216 (10) and (11) of
the Act.
(a) For the purpose of determining the applicability of section
216(10) of the Act, an internal combustion engine (including the fuel
system) that is not used in a motor vehicle is deemed a nonroad engine,
if it meets the definition in subpart A of this part. For the purpose
of determining the applicability of section 216(11) of the Act, a
vehicle powered by a nonroad engine is deemed a nonroad vehicle, if it
meets the definition in subpart A of this part.
(b) EPA will maintain a list of models of nonroad engines and
models of nonroad vehicles that have been determined to be excluded
because they are used solely for competition. This list will be
available to the public and may be obtained by writing to the following
address: Group Manager, Engine Compliance Programs Group, Engine
Programs and Compliance Division (6403J) Environmental Protection
Agency, 401 M Street SW., Washington, DC 20460.
(c) Upon written request with supporting documentation, EPA will
make written determinations as to whether certain engines are or are
not nonroad engines. Engines that are determined not to be nonroad
engines are excluded from regulations under this part.
6. Section 90.908 is revised to read as follows:
Sec. 90.908 National security exemption.
(a)(1) Any nonroad engine, otherwise subject to this part, which is
used in a vehicle or equipment that exhibits substantial features
ordinarily associated with military combat such as armor and/or
permanently affixed weaponry and which will be owned and/or used by an
agency of the federal government with responsibility for national
defense, will be considered exempt from this part for purposes of
national security. No request for exemption is necessary.
(2) Manufacturers may request a national security exemption for any
nonroad engine, otherwise subject to this part, which does not meet the
conditions described in paragraph (a)(1) of this section. A
manufacturer requesting a national security exemption must state the
purpose for which the exemption is required and the request must be
endorsed by an agency of the federal government charged with
responsibility for national defense.
(b) EPA will maintain a list of models of nonroad engines (and the
vehicles or equipment which use them) that have been granted a national
security exemption under paragraph (a)(2) of this section. This list
will be available to the public and may be obtained by writing to the
following address: Group Manager, Engine Compliance Programs Group,
Engine Programs and Compliance Division (6403J) Environmental
Protection Agency, 401 M Street SW., Washington, DC 20460.
7. Part 91 is added to read as follows:
PART 91--CONTROL OF EMISSIONS FROM MARINE SPARK-IGNITION ENGINES
Subpart A--General
Sec.
91.1 Applicability.
91.2 Applicable date.
91.3 Definitions.
91.4 Acronyms and abbreviations.
91.5 Table and figure numbering; position.
91.6 Reference materials.
91.7 Treatment of confidential information.
Subpart B--Emission Standards and Certification Provisions
91.101 Applicability.
91.102 Definitions.
91.103 Averaging, banking, and trading of exhaust emission credits.
91.104 Exhaust emission standards for outboard and personal
watercraft engines.
91.105 Useful life period, recall, and warranty periods.
91.106 Certificate of conformity.
91.107 Application for certification.
91.108 Certification.
91.109 Requirement of certification--closed crankcase.
91.110 Requirement of certification--prohibited controls.
91.111 Requirement of certification--prohibition of defeat devices.
91.112 Requirement of certification--adjustable parameters.
91.113 Requirement of certification--emission control information
label and engine identification number.
[[Page 52103]]
91.114 Requirement of certification--supplying production engines
upon request.
91.115 Certification procedure--determining engine power and engine
families.
91.116 Certification procedure--test engine selection.
91.117 Certification procedure--service accumulation.
91.118 Certification procedure--testing.
91.119 Certification procedure--use of special test procedures.
91.120 Compliance with Family Emission Limits over useful life.
91.121 Certification procedure--recordkeeping.
91.122 Amending the application and certificate of conformity.
91.123 Denial, revocation of certificate of conformity.
91.124 Request for hearing.
91.125 Hearing procedures.
91.126 Right of entry and access.
Subpart C--Averaging, Banking, and Trading Provisions
91.201 Applicability.
91.202 Definitions.
91.203 General provisions.
91.204 Averaging.
91.205 Banking.
91.206 Trading.
91.207 Credit calculation and manufacturer compliance with emission
standards.
91.208 Certification.
91.209 Maintenance of records.
91.210 End-of-year and final reports.
91.211 Notice of opportunity for hearing.
Subpart D--Emission Test Equipment Provisions
91.301 Scope; applicability.
91.302 Definitions.
91.303 Acronyms and abbreviations.
91.304 Test equipment overview.
91.305 Dynamometer specifications and calibration accuracy.
91.306 Dynamometer torque cell calibration.
91.307 Engine cooling system.
91.308 Lubricating oil and test fuel.
91.309 Engine intake air temperature measurement.
91.310 Engine intake air humidity measurement.
91.311 Test conditions.
91.312 Analytical gases.
91.313 Analyzers required.
91.314 Analyzer accuracy and specifications.
91.315 Analyzer initial calibration.
91.316 Hydrocarbon analyzer calibration.
91.317 Carbon monoxide analyzer calibration.
91.318 Oxides of nitrogen analyzer calibration.
91.319 NOX converter check.
91.320 Carbon dioxide analyzer calibration.
91.321 NDIR analyzer calibration.
91.322 Calibration of other equipment.
91.323 Analyzer bench checks.
91.324 Analyzer leakage check.
91.325 Analyzer interference checks.
Appendix A to Subpart D of Part 91--Tables
91.326 Pre- and post-test analyzer calibration.
91.327 Sampling system requirements.
91.328 Measurement equipment accuracy/calibration frequency table.
91.329 Catalyst thermal stress test.
Appendix B to Subpart D of Part 91--Figures
Subpart E--Gaseous Exhaust Test Procedures
91.401 Scope; applicability.
91.402 Definitions.
91.403 Symbols and abbreviations.
91.404 Test procedure overview.
91.405 Recorded information.
91.406 Engine parameters to be measured and recorded.
91.407 Engine inlet and exhaust systems.
91.408 Pre-test procedures.
91.409 Engine dynamometer test run.
91.410 Engine test cycle.
91.411 Post-test analyzer procedures.
91.412 Data logging.
91.413 Exhaust sample procedure--gaseous components.
91.414 Raw gaseous exhaust sampling and analytical system
description.
91.415 Raw gaseous sampling procedures.
91.416 Intake air flow measurement specifications.
91.417 Fuel flow measurement specifications.
91.418 Data evaluation for gaseous emissions.
91.419 Raw emission sampling calculations.
91.420 CVS concept of exhaust gas sampling system.
91.421 Dilute gaseous exhaust sampling and analytical system
description.
91.423 Exhaust gas analytical system; CVS grab sample.
91.424 Dilute sampling procedure--CVS calibration.
91.425 CVS calibration frequency.
91.426 Dilute emission sampling calculations.
91.427 Catalyst thermal stress resistance evaluation.
Appendix A to Subpart E of Part 91--Tables
Appendix B to Subpart E of Part 91--Figures
Subpart F--Manufacturer Production Line Testing Program
91.501 Applicability.
91.502 Definitions.
91.503 Production Line Testing by the Manufacturer.
91.504 Maintenance of records; submittal of information.
91.505 Right of entry and access.
91.506 Engine sample selection.
91.507 Test procedures.
91.508 Cumulative Sum (CumSum) Procedure.
91.509 Calculation and reporting of test results.
91.510 Compliance with criteria for production line testing.
91.511 Suspension and revocation of certificates of conformity.
91.512 Request for public hearing.
91.513 Administrative procedures for public hearing.
91.514 Hearing procedures.
91.515 Appeal of hearing decision.
91.516 Treatment of confidential information.
Subpart G--Selective Enforcement Auditing Regulations
91.601 Applicability.
91.602 Definitions.
91.603 Applicability of part 91, subpart F.
91.604 Test orders.
91.605 Testing by the Administrator.
91.606 Sample selection.
91.607 Test procedures.
91.608 Compliance with acceptable quality level and passing and
failing criteria for selective enforcement audits.
Appendix A to Subpart G of Part 91--Sampling Plans for Selective
Enforcement Auditing of Marine Engines
Subpart H--Importation of Nonconforming Marine Engines
91.701 Applicability...
91.702 Definitions.
91.703 Admission.
91.704 Exemptions and exclusions.
91.705 Prohibited acts; penalties.
91.706 Treatment of confidential information.
Subpart I--In-Use Testing and Recall Regulations
91.801 Applicability.
91.802 Definitions.
91.803 Manufacturer in-use testing program.
91.804 Maintenance, procurement and testing of in-use engines.
91.805 In-use test program reporting requirements.
91.806 Voluntary emissions recall.
Subpart J--Emission-Related Defect Reporting Requirements, Voluntary
Emission Recall Program
91.901 Applicability.
91.902 Definitions.
91.903 Applicability to Part 85, subpart T.
91.904 Voluntary emission recall.
91.905 Reports, voluntary recall plan filing, record retention.
91.906 Responsibility under other legal provisions preserved.
91.907 Disclaimer of production warranty applicability.
Subpart K--Exclusion and Exemption of Marine SI Engines
91.1001 Applicability.
91.1002 Definitions.
91.1003 Exclusions based on section 216(10) of the Act.
91.1004 Who may request an exemption.
91.1005 Testing exemption.
91.1006 Manufacturer-owned exemption and precertification
exemption.
91.1007 Display exemption.
91.1008 National security exemption.
91.1009 Export exemptions.
91.1010 Granting of exemptions.
91.1011 Submission of exemption requests.
91.1012 Treatment of confidential information.
Subpart L--Prohibited Acts and General Enforcement Provisions
91.1101 Applicability.
91.1102 Definitions.
91.1103 Prohibited acts.
91.1104 General enforcement provisions.
[[Page 52104]]
91.1105 Injunction proceedings for prohibited acts.
91.1106 Penalties.
91.1107 Warranty provisions.
91.1108 In-use compliance provisions.
Subpart M--Emission Warranty and Maintenance Instructions
91.1201 Applicability.
91.1202 Definitions.
91.1203 Emission warranty, warranty period.
91.1204 Furnishing of maintenance and use instructions to ultimate
purchaser.
Subpart N--In-Use Credit Program for New Marine Engines
91.1301 Applicability.
91.1302 Definitions.
91.1303 General provisions.
91.1304 Averaging.
91.1305 Banking.
91.1306 Trading.
91.1307 Credit calculation.
91.1308 Maintenance of records.
91.1309 Reporting requirements.
91.1310 Notice of opportunity for hearing.
Authority: Secs. 203, 204, 205, 206, 207, 208, 209, 213, 215,
216, and 301(a) of the Clean Air Act, as amended (42 U.S.C. 7522,
7523, 7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550, and 7601(a)).
Subpart A--General
Sec. 91.1 Applicability.
(a) This part and all its subparts apply to marine spark-ignition
engines used to propel marine vessels as defined in the General
Provisions of the United States Code, 1 U.S.C.3 (1992), unless
otherwise indicated.
(b) Sterndrive and inboard engines are exempt from this part.
(c) Existing technology OB/PWC are exempt from Sec. 91.112 and
subparts D, E, F, G, I (Secs. 91.803 through 91.805), J, M and N
through model year 2003.
Sec. 91.2 Applicable date.
This part applies to marine spark-ignition engines beginning with
the 1998 model year, except where otherwise specified.
Sec. 91.3 Definitions.
The following definitions apply to this part 91. All terms not
defined herein have the meaning given them in the Act.
Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et.seq.
Adjustable parameter means any device, system, or element of design
which is physically capable of being adjusted (including those which
are difficult to access) and which, if adjusted, may affect emissions
or engine performance during emission testing or normal in-use
operation.
Administrator means the Administrator of the Environmental
Protection Agency or his or her authorized representative.
Auxiliary emission control device means any element of design that
senses temperature, engine speed, engine RPM, transmission gear, or any
other parameter for the purpose of activating, modulating, delaying, or
deactivating the operation of any part of the emission control system.
Certification means, with respect to new SI marine engines,
obtaining a certificate of conformity for an engine family complying
with the marine SI engine emission standards and requirements specified
in this part.
Emission control system means any device, system, or element of
design which controls or reduces the emission of substances from an
engine.
Engine as used in this part, refers to marine SI engine.
Engine family means a group of engines, as specified in
Sec. 91.115.
EPA enforcement officer means any officer, employee, or authorized
representative of the U.S. Environmental Protection Agency so
designated in writing by the Administrator (or by his or her designee).
Exhaust emissions means matter emitted into the atmosphere from any
opening downstream from the exhaust port of a marine engine.
Existing technology OB/PWC means an outboard engine or a personal
watercraft engine which was in production for the 1997 or any previous
model years and that did not utilize newer technologies such as four-
stroke technology, direct-injection two-stroke technology, catalyst
technology, or other technology used to comply with emission standards
which the Administrator determines is a new type of OB/PWC technology.
Family Emission Limit (FEL) means an emission level that is
declared by the manufacturer to serve in lieu of an emission standard
for certification and for the averaging, banking, and trading program.
A FEL must be expressed to the same number of decimal places as the
applicable emission standard.
Fuel system means all components involved in the transport,
metering, and mixture of the fuel from the fuel tank to the combustion
chamber(s) including the following: Fuel tank, fuel tank cap, fuel
pump, fuel lines, oil injection metering system, carburetor or fuel
injection components, and all fuel system vents.
Gross power means the power measured at the crankshaft or its
equivalent (for outboards, the power may be measured at the propeller
shaft), the engine being equipped only with the standard accessories
(such as oil pumps, coolant pumps, and so forth) necessary for its
operation on the test bed.
Identification number means a unique specification (for example,
model number/serial number combination) which allows a particular
marine SI engine to be distinguished from other similar engines.
Inboard engine means a four stroke marine SI engine that is
designed such that the propeller shaft penetrates the hull of the
marine vessel while the engine and the remainder of the drive unit is
internal to the hull of the marine vessel.
Marine spark-ignition engine means any engine used to propel a
marine vessel, which utilizes the spark-ignition combustion cycle.
Marine engine manufacturer means any person engaged in the
manufacturing or assembling of new marine SI engines or the importing
of such engines for resale, or who acts for and is under the control of
any such person in connection with the distribution of such engines. A
marine SI engine manufacturer does not include any dealer with respect
to new marine SI engines received by such person in commerce.
Marine vessel means every description of watercraft or another
artificial contrivance used, or capable of being used, as a means of
transportation on water, as defined in 1 U.S.C. 3 (1992).
Marine vessel manufacturer means any person engaged in the
manufacturing or assembling of new marine vessels or importing such
marine vessels for resale, or who acts for and is under the control of
any such person in connection with the distribution of such vehicles. A
marine vessel manufacturer does not include any dealer with respect to
new marine vessels received by such person in commerce.
Model year means the manufacturer's annual new model production
period which includes January 1 of the calendar year for which the
model year is named, ends no later than December 31 of the calendar
year, and does not begin earlier than January 2 of the previous
calendar year. Where a manufacturer has no annual new model production
period, model year means the calendar year.
New, for purposes of this part, means a nonroad engine, nonroad
vehicle, or nonroad equipment the equitable or legal title to which has
never been transferred to an ultimate purchaser. Where the equitable or
legal title to the engine, vehicle or equipment is not transferred to
an ultimate purchaser
[[Page 52105]]
until after the engine, vehicle, or equipment is placed into service,
then the engine, vehicle, or equipment will no longer be new after it
is placed into service. A nonroad engine, vehicle, or equipment is
placed into service when it is used for its functional purposes. With
respect to imported nonroad engines, nonroad vehicles, or nonroad
equipment, the term ``new'' means an engine, vehicle, or piece of
equipment that is not covered by a certificate of conformity issued
under this part at the time of importation, and that is manufactured
after the effective date of a regulation issued under this part which
is applicable to such engine, vehicle, or equipment, or which would be
applicable to such engine, vehicle, or equipment had it been
manufactured for importation into the United States.
Nonroad engine has the meaning as defined in 40 CFR 89.2.
Nonroad vehicle has the meaning as defined in 40 CFR 89.2.
Nonroad equipment has the meaning as defined in 40 CFR 89.2.
Operating hours means:
(1) For engine storage areas or facilities, all times during which
personnel other than custodial personnel are at work in the vicinity of
the storage area or facility and have access to it.
(2) For all other areas or facilities, all times during which an
assembly line is in operation or all times during which testing,
maintenance, service accumulation, production or compilation of
records, or any other procedure or activity related to certification
testing, to translation of designs from the test stage to the
production stage, or to engine manufacture or assembly is being carried
out in a facility.
Outboard engine is a marine SI engine that, when properly mounted
on a marine vessel in the position to operate, houses the engine and
drive unit external to the hull of the marine vessel.
Personal watercraft engine (PWC) is a marine SI engine that does
not meet the definition of outboard engine, inboard engine or
sterndrive engine, except that the Administrator in his or her
discretion may classify a PWC as an inboard or sterndrive engine if it
is comparable in technology and emissions to an inboard or sterndrive
engine.
Presentation of credentials means the display of the document
designating a person as an EPA enforcement officer or EPA authorized
representative.
Scheduled maintenance means any adjustment, repair, removal,
disassembly, cleaning, or replacement of components or systems required
by the manufacturer to be performed on a periodic basis to prevent part
failure or marine vessel or engine malfunction, or those actions
anticipated as necessary to correct an overt indication of malfunction
or failure for which periodic maintenance is not appropriate.
Sterndrive engine means a four stroke marine SI engine that is
designed such that the drive unit is external to the hull of the marine
vessel, while the engine is internal to the hull of the marine vessel.
Test engine means the engine or group of engines that a
manufacturer uses during certification, production line and in-use
testing to determine compliance with emission standards.
Ultimate purchaser means, with respect to any new marine SI engine
the first person who in good faith purchases such new marine SI engine
for purposes other than resale.
Used solely for competition means exhibiting features that are not
easily removed and that would render its use other than in competition
unsafe, impractical, or highly unlikely.
Warranty period means the period of time the engine or part is
covered by the warranty provisions.
Sec. 91.4 Acronyms and abbreviations.
The following acronyms and abbreviations apply to this part 91.
AECD--Auxiliary emission control device
ASME--American Society of Mechanical Engineers
ASTM--American Society for Testing and Materials
CAA--Clean Air Act
CAAA--Clean Air Act Amendments of 1990
CLD--chemiluminescent detector
CO--Carbon monoxide
CO2--Carbon dioxide
EPA--Environmental Protection Agency
FEL--Family Emission Limit
g/kw-hr--grams per kilowatt hour
HC--hydrocarbons
HCLD--heated chemiluminescent detector
HFID--heated flame ionization detector
ICI--Independent Commercial Importer
MY--Model Year
NDIR--non-dispersive infrared analyzer
NIST--National Institute for Standards and Testing
NO--Nitric oxide
NO2--Nitrogen dioxide
NOX--Oxides of nitrogen
OB--Outboard engine
O2--Oxygen
OEM--Original engine manufacturer
PMD--paramagnetic detector
PWC--personal watercraft
RPM--revolutions per minute
SAE--Society of Automotive Engineers
SEA--Selective Enforcement Auditing
SI--Spark-ignition
U.S.C.--United States Code
VOC--Volatile organic compounds
ZROD--zirconium dioxide sensor
Sec. 91.5 Table and figure numbering; position.
(a) Tables for each subpart appear in an appendix at the end of the
subpart. Tables are numbered consecutively by order of appearance in
the appendix. The table title will indicate the topic.
(b) Figures for each subpart appear in an appendix at the end of
the subpart. Figures are numbered consecutively by order or appearance
in the appendix. The figure title will indicate the topic.
Sec. 91.6 Reference materials.
(a) Incorporation by reference. The documents in paragraph (b) of
this section have been incorporated by reference. The incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
inspected at U.S. EPA, OAR, Air and Radiation Docket and Information
Center, 401 M Street, SW., Washington, DC 20460, or at the Office of
the Federal Register, 800 N. Capitol St. NW., 7th Floor, Suite 700,
Washington, DC 20001.
(b) The following paragraphs and tables set forth the material that
has been incorporated by reference in this part.
(1) ASTM material. The following table sets forth material from the
American Society for Testing and Materials which has been incorporated
by reference. The first column lists the number and name of the
material. The second column lists the section(s) of this part, other
than Sec. 91.6, in which the matter is referenced. The second column is
presented for information only and may not be all inclusive. Copies of
these materials may be obtained from American Society for Testing and
Materials, 1916 Race St., Philadelphia, PA 19103.
[[Page 52106]]
------------------------------------------------------------------------
Document number and name 40 CFR part 91 reference
------------------------------------------------------------------------
ASTM D86-93:
Standard Test Method for Appendix A to Subpart D.
Distillation of
Petroleum Products.
ASTM D323-90:
Standard Test Method for Appendix A to Subpart D.
Vapor Pressure of
Petroleum Products (Reid
Method).
ASTM D1319-93:
Standard Test Method for Appendix A to Subpart D.
Hydrocarbon Types in
Liquid Petroleum
Products by Fluorescent
Indicator Adsorption.
ASTM D2622-92:
Standard Test Method for Appendix A to Subpart D.
Sulfur in Petroleum
Products by X-Ray
Spectrometry.
ASTM D2699-92:
Standard Test Method for Appendix A to Subpart D.
Knock Characteristics of
Motor Fuels by the
Research Method.
ASTM D2700-92:
Standard Test Method for Appendix A to Subpart D.
Knock Characteristics of
Motor and Aviation Fuels
by the Motor Method.
ASTM D3231-89:
Standard Test Method for Appendix A to Subpart D.
Phosphorus in Gasoline.
ASTM D3606-92:
Standard Test Method for Appendix A to Subpart D.
Determination of Benzene
and Toluene in Finished
Motor and Aviation
Gasoline by Gas
Chromatography.
ASTM E29-93a:
Standard Practice for 91.207; 91.120; 91.509; 91.1307.
Using Significant Digits
in Test Data to
Determine Conformance
with Specifications.
------------------------------------------------------------------------
(2) SAE material. The following table sets forth material from the
Society of Automotive Engineers which has been incorporated by
reference. The first column lists the number and name of the material.
The second column lists the section(s) of this part, other than
Sec. 91.7, in which the matter is referenced. The second column is
presented for information only and may not be all inclusive. Copies of
these materials may be obtained from Society of Automotive Engineers
International, 400 Commonwealth Dr., Warrendale, PA 15096-0001.
------------------------------------------------------------------------
Document number and name 40 CFR part 91 reference
------------------------------------------------------------------------
SAE J1228/ISO 8665 November 91.104, 91.115; 91.118; 91.207; 91.1307.
1991 Small Craft-Marine
Propulsion Engine and
Systems-Power Measurements
and Declarations.
SAE J1930 June 1993 91.113.
Electrical/Electronic
Systems Diagnostic Terms,
Definitions, Abbreviations
and Acronyms.
SAE Paper 770141 Optimization 91.316
of a Flame Ionization
Detector for Determination
of Hydrocarbon in Diluted
Automotive Exhausts, Glenn
D. Reschke, 1977.
------------------------------------------------------------------------
Sec. 91.7 Treatment of confidential information.
(a) Any manufacturer may assert that some or all of the information
submitted pursuant to this part is entitled to confidential treatment
as provided by part 2, subpart B, of this chapter.
(b) Any claim of confidentiality must accompany the information at
the time it is submitted to EPA.
(c) To assert that information submitted pursuant to this subpart
is confidential, a manufacturer must indicate clearly the items of
information claimed confidential by marking, circling, bracketing,
stamping, or otherwise specifying the confidential information.
Furthermore, EPA requests, but does not require, that the submitter
also provide a second copy of its submittal from which all confidential
information has been deleted. If a need arises to publicly release
nonconfidential information, EPA will assume that the submitter has
accurately deleted the confidential information from this second copy.
(d) If a claim is made that some or all of the information
submitted pursuant to this subpart is entitled to confidential
treatment, the information covered by that confidentiality claim will
be disclosed by the Administrator only to the extent and by means of
the procedures set forth in part 2, subpart B, of this chapter.
(e) Information provided without a claim of confidentiality at the
time of submission may be made available to the public by EPA without
further notice to the submitter, in accordance with
Sec. 2.204(c)(2)(i)(A) of this chapter.
Subpart B--Emission Standards and Certification Provisions
Sec. 91.101 Applicability.
The requirements of this subpart B are applicable to all new marine
spark-ignition engines subject to the provisions of subpart A of this
part 91.
Sec. 91.102 Definitions.
The definitions in subpart A of this part 91 apply to this subpart.
All terms not defined herein or in subpart A of this part have the
meaning given them in the Act.
Sec. 91.103 Averaging, banking, and trading of exhaust emission
credits.
Regulations regarding averaging, banking, and trading provisions
along with applicable recordkeeping requirements are found in subpart C
of this part.
Sec. 91.104 Exhaust emission standards for outboard and personal
watercraft engines.
(a) New marine spark-ignition outboard and personal watercraft
engines for use in the U.S. must meet the following exhaust emission
standards for HC+NOX. The exhaust emission standard for each model
year is provided below. It is also used as input to the calculation
procedure in Sec. 91.207 to determine compliance with the corporate
average HC+NOX exhaust emission standard.
[[Page 52107]]
Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission Standards
[grams per kilowatt-hour]
----------------------------------------------------------------------------------------------------------------
P < 4.3 kW HC+NOX emission P > 4.3 kW HC+NOX emission
Model year standard by model year standard by model year
----------------------------------------------------------------------------------------------------------------
1998.................................................. 278.00 (0.917 x (151 + 557/P0.9))
+ 2.44
1999.................................................. 253.00 (0.833 x (151 + 557/P0.9))
+ 2.89
2000.................................................. 228.00 (0.750 x (151 + 557/P0.9))
+ 3.33
2001.................................................. 204.00 (0.667 x (151 + 557/P0.9))
+ 3.78
2002.................................................. 179.00 (0.583 x (151 + 557/P0.9))
+ 4.22
2003.................................................. 155.00 (0.500 x (151 + 557/P0.9))
+ 4.67
2004.................................................. 130.00 (0.417 x (151 + 557/P0.9))
+ 5.11
2005.................................................. 105.00 (0.333 x (151 + 557/P0.9))
+ 5.56
2006 and later........................................ 81.00 (0.250 x (151 + 557/P0.9))
+ 6.00
----------------------------------------------------------------------------------------------------------------
where:
P = the average power of an engine family in kW (sales weighted). The
power of each configuration is the rated output in kilowatts as
determined by SAE J1228. This procedure has been incorporated by
reference. See Sec. 91.6.
(b) Exhaust emissions are measured using the procedures set forth
in subpart E of this part.
(c) Manufacturers must designate a Family Emission Limit (FEL) for
HC+NOX for every engine family. The FEL may be equal to the
emission standard in paragraph (a) of this section. The FEL established
through certification serves as the emission standard for the engine
family and emissions may not exceed the FEL levels for HC+NOX for
all engines sold in the engine family, for their useful life.
(d) A manufacturer must comply with a corporate average HC+NOX
emission standard as determined in accordance with subpart C
Sec. 91.207.
Sec. 91.105 Useful life period, recall, and warranty periods.
(a) The useful life for PWC engines is a period of 350 hours of
operation or 5 years of use, whichever first occurs. The useful life
for Outboard marine spark-ignition engines is a period of 350 hours of
operation or 10 years of use, whichever first occurs.
(b) PWC engines are subject to recall testing for a period of 350
hours of operation or 5 years of use, whichever first occurs. Outboard
marine spark-ignition engines are subject to recall testing for a
period of 350 hours of operation or 10 years of use, whichever first
occurs. However, for purposes of this part only, if the Administrator
should issue a nonconformity determination, then only those engines
that are within the useful life as of the date of the nonconformity
determination are subject to recall repair requirements.
(c) Warranty periods are set out in subpart M of this part.
Sec. 91.106 Certificate of conformity.
(a) Every manufacturer of a new marine SI engine produced during or
after the 1998 model year for outboard engines and the 1999 model year
for PWC engines, must obtain a certificate of conformity covering each
engine family. The certificate of conformity must be obtained from the
Administrator prior to selling, offering for sale, introducing into
commerce, or importing into the United States the new marine SI engine.
(b) The certificate of conformity is valid for the model year for
which it is designated.
Sec. 91.107 Application for certification.
(a) For each engine family, the engine manufacturer must submit to
the Administrator a completed application for a certificate of
conformity, except that with respect to an existing technology OB/PWC
engine a manufacturer may, in lieu of providing such application,
submit to the Administrator summary testing and other information as
determined by the Administrator.
(b) The application must be approved and signed by the authorized
representative of the manufacturer.
(c) The application must be updated and corrected by amendment as
provided in Sec. 91.122 to accurately reflect the manufacturer's
production.
(d) Required content. Each application must include the following
information:
(1) A description of the basic engine design including, but not
limited to, the engine family specifications;
(2) An explanation of how the emission control system operates,
including a detailed description of all emission control system
components (detailed component calibrations are not required to be
included, however they must be provided if requested), each auxiliary
emission control device (AECD), and all fuel system components to be
installed on any production or test engine(s);
(3) Proposed test fleet selection and the rationale for the test
fleet selection;
(4) Special or alternative test procedures, if applicable;
(5) The description of the operating cycle and the service
accumulation period necessary to break in the test engine(s) and
stabilize emission levels and any maintenance scheduled;
(6) A description of all adjustable operating parameters, including
the following:
(i) The nominal or recommended setting and the associated
production tolerances;
(ii) The intended physically adjustable range;
(iii) The limits or stops used to establish adjustable ranges;
(iv) Production tolerances of the limits or stops used to establish
each physically adjustable range; and
(v) Information relating to why the physical limits or stops used
to establish the physically adjustable range of each parameter, or any
other means used to inhibit adjustment, are effective in preventing
adjustment of parameters to settings outside the manufacturer's
intended physically adjustable ranges on in-use engines;
(7) Regarding the averaging, banking, and trading provisions, the
information specified in Sec. 91.208;
(8) The proposed maintenance and use instructions the manufacturer
will furnish to the ultimate purchaser of each new engine and the
proposed emission control label;
(9) all test data, for HC, CO and NOX, obtained by the
manufacturer on each test engine;
(10) a statement that the test engine(s), as described in the
manufacturer's application for certification, has been tested in
accordance with the applicable test procedures, utilizing the fuels and
equipment described in the application,
[[Page 52108]]
and that on the basis of such tests the engine(s) conforms to the
requirements of this part; and
(11) an unconditional statement certifying that all engines in the
engine family comply with all requirements of this part and the Clean
Air Act.
(e) At the Administrator's request, the manufacturer must supply
such additional information as may be required to evaluate the
application including, but not limited to, projected marine SI engine
production.
(f) (1) The Administrator may modify the information submission
requirements of paragraph (d) of this section, provided the information
specified therein is maintained by the engine manufacturer as required
by Sec. 91.121, and amended, updated, or corrected as necessary.
(2) For the purposes of this paragraph, Sec. 91.121(a)(1) includes
all information specified in paragraph (d) of this section whether or
not such information is actually submitted to the Administrator for any
particular model year.
(3) The Administrator may review an engine manufacturer's records
at any time.
Sec. 91.108 Certification.
(a) If, after a review of the manufacturer's submitted application,
or with respect to an existing technology OB/PWC engine manufacturer's
summary information submitted pursuant to Sec. 91.107(a), information
obtained from any inspection, and such other information as the
Administrator may require, the Administrator determines that the
application or summary information is complete and that the engine
family meets the requirements of this part and the Clean Air Act, the
Administrator shall issue a certificate of conformity for the engine
family.
(b) The Administrator shall give a written explanation when
certification is denied. The manufacturer may request a hearing on a
denial. (See Sec. 91.124 for procedure.)
Sec. 91.109 Requirement of certification--closed crankcase.
(a) An engine's crankcase must be closed.
(b) For purposes of this section, ``crankcase'' means the housing
for the crankshaft and other related internal parts.
Sec. 91.110 Requirement of certification--prohibited controls.
(a) An engine may not be equipped with an emission control device,
system, or element of design for the purpose of complying with emission
standards if such device, system, or element of design will cause or
contribute to an unreasonable risk to public health, welfare, or safety
in its operation or function.
(b) An engine with an emission control device, system, or element
of design may not emit any noxious or toxic substance which would not
be emitted in the operation of such engine in the absence of the
device, system, or element of design except as specifically permitted
by regulation.
Sec. 91.111 Requirement of certification--prohibition of defeat
devices.
(a) An engine may not be equipped with a defeat device.
(b) For purposes of this section, ``defeat device'' means any
device, system, or element of design which senses operation outside
normal emission test conditions and reduces emission control
effectiveness.
(1) Defeat device includes any auxiliary emission control device
(AECD) that reduces the effectiveness of the emission control system
under conditions which may reasonably be expected to be encountered in
normal operation and use, unless such conditions are included in the
test procedure.
(2) Defeat device does not include such items which either operate
only during engine starting or are necessary to protect the engine (or
vehicle or equipment in which it is installed) against damage or
accident during its operation.
Sec. 91.112 Requirement of certification--adjustable parameters.
(a) Engines equipped with adjustable parameters must comply with
all requirements of this subpart for any adjustment in the physically
available range.
(b) An operating parameter is not considered adjustable if it is
permanently sealed by the manufacturer or otherwise not normally
accessible using ordinary tools.
(c) The Administrator may require that adjustable parameters be set
to any specification within the adjustable range during certification,
production line testing, selective enforcement auditing or any in-use
testing to determine compliance with the requirements of this part.
Sec. 91.113 Requirement of certification--emission control
information label and engine identification number.
(a) The engine manufacturer must affix at the time of manufacture a
permanent and legible label identifying each engine. The label must
meet the following requirements:
(1) Be attached in such a manner that it cannot be removed without
destroying or defacing the label;
(2) Be durable and readable for the entire engine life;
(3) Be secured to an engine part necessary for normal engine
operation and not normally requiring replacement during engine life;
(4) Be written in English; and
(5) Be located so as to be readily visible to the average person
after the engine is installed in the marine vessel.
(b) If the marine vessel obscures the label on the engine, the
marine vessel manufacturer must attach a supplemental label so that
this label is readily visible to the average person. The supplemental
label must:
(1) Be attached in such a manner that it cannot be removed without
destroying or defacing the label;
(2) Be secured to a marine vessel part necessary for normal
operation and not normally requiring replacement during the marine
vessel life; and
(3) Be identical to the label which was obscured.
(c) The label must contain the following information:
(1) The heading ``Emission Control Information;''
(2) The full corporate name and trademark of the engine
manufacturer;
(3) The statement, ``This (vessel's engine or engine, as
applicable) is certified to operate on (specify operating fuel(s));''
(4) Identification of the Exhaust Emission Control System
(Abbreviations may be used and must conform to the nomenclature and
abbreviations provided in SAE J1930. This procedure has been
incorporated by reference. See Sec. 91.6.;
(5) All engine lubricant requirements;
(6) date of manufacture [day(optional), month and year];
(7) The statement ``This engine conforms to [model year] U.S. EPA
regulations for marine SI engines.'';
(8) Family Emission Limits (FELs);
(9) EPA standardized engine family designation;
(10) Engine displacement [in cubic centimeters]; and
(11) Advertised power;
(12) Engine tuneup specifications and adjustments. These should
indicate the proper transmission position during tuneup, and
accessories, if any, that should be in operation;
(13) Fuel requirements;
(14) Other information concerning proper maintenance and use or
indicating compliance or noncompliance with other standards may be
indicated on the label.
(d) If there is insufficient space on the engine to accommodate a
label
[[Page 52109]]
including all the information required in paragraph (c) of this
section, the manufacturer may delete or alter the label as indicated in
this paragraph. The information deleted from the label must appear in
the owner's manual.
(1) Exclude the information required in paragraphs (c) (3), (4),
and (5) of this section. The fuel or lubricant may be specified
elsewhere on the equipment.
(2) Exclude the information required by paragraph (c)(6) of this
section, if the date the engine was manufactured is stamped on the
engine.
(3) For existing technology OB/PWC only, exclude the information
required by paragraphs (c) (10), (11), (13), and (14) of this section.
(e) The Administrator may, upon request, waive or modify the label
content requirements of paragraphs (c) and (d) of this section,
provided that the intent of such requirements is met.
(f) Engine Identification Number. Each engine must have a legible,
unique engine identification number permanently affixed to or engraved
on the engine.
Sec. 91.114 Requirement of certification--supplying production engines
upon request.
Upon the Administrator's request, the manufacturer must supply a
reasonable number of production engines for testing and evaluation.
These engines must be representative of typical production and supplied
for testing at such time and place and for such reasonable periods as
the Administrator may require.
Sec. 91.115 Certification procedure--determining engine power and
engine families.
(a) Engine power must be calculated using SAE J1228. This procedure
has been incorporated by reference. See Sec. 91.6.
(b) The manufacturer's product line must be divided into engine
families as specified by paragraph (c) of this section, comprised of
engines expected to have similar emission characteristics throughout
their useful life periods.
(c) To be classed in the same engine family, engines must be
identical in all of the following applicable respects:
(1) The combustion cycle;
(2) The cooling mechanism;
(3) The cylinder configuration (inline, vee, opposed, bore
spacings, and so forth);
(4) The number of cylinders;
(5) The number of catalytic converters, location; volume, and
composition; and
(6) The thermal reactor characteristics.
(d) At the manufacturer's request, engines identical in all the
respects listed in paragraph (c) of this section may be further divided
into different engine families if the Administrator determines that
they may be expected to have different emission characteristics. This
determination is based upon the consideration of features such as:
(1) The bore and stroke;
(2) The combustion chamber configuration;
(3) The intake and exhaust timing method of actuation (poppet
valve, reed valve, rotary valve, and so forth);
(4) The intake and exhaust valve or port sizes, as applicable;
(5) The fuel system;
(6) The exhaust system; and
(7) The method of air aspiration.
(e) Where engines are of a type which cannot be divided into engine
families based upon the criteria listed in paragraph (c) of this
section, the Administrator shall establish families for those engines
based upon the features most related to their emission characteristics.
(f) Upon a showing by the manufacturer that the emission
characteristics during the useful life are expected to be similar,
engines differing in one or more of the characteristics in paragraph
(c) of this section may be grouped in the same engine family.
(g) Upon a showing by the manufacturer that the emission
characteristics during the useful life are expected to be dissimilar,
engines identical in all the characteristics in paragraph (c) of this
section may be divided into separate engine families.
Sec. 91.116 Certification procedure--test engine selection.
(a) The manufacturer must select, from each engine family, a test
engine of a configuration that the manufacturer deems to be most likely
to exceed the Family Emission Limit (FEL).
(b) At the manufacturer's option, the criterion for selecting the
worst case engine may be that engine configuration which has the
highest weighted brake-specific fuel consumption over the appropriate
engine test cycle.
(c) The test engine must be constructed to be representative of
production engines.
Sec. 91.117 Certification procedure--service accumulation.
(a)(1) Any engine required to be tested under Sec. 91.118 must be
operated with all emission control systems operating properly for a
period sufficient to stabilize emissions prior to such testing.
(2) A manufacturer may elect to consider emission levels as
stabilized when the test engine has accumulated 12 hours of service.
(b) No maintenance, other than recommended lubrication and filter
changes, may be performed during service accumulation without the
Administrator's approval.
(c) Service accumulation is to be performed in a manner using good
engineering judgment to ensure that emissions are representative of
production engines.
(d) The manufacturer must maintain, and provide to the
Administrator if requested, records stating the rationale for selecting
a service accumulation period different than 12 hours and records
describing the method used to accumulate hours on the test engine(s).
Sec. 91.118 Certification procedure--testing.
(a) Manufacturer testing. The manufacturer must test the test
engine using the specified test procedures and approp
FR Doc. 96-23063 Control of Air Pollution; Final Rule for New Gasoline Spark- Ignition Marine Engines; Exemptions for New Nonroad Compression- Ignition Engines at or Above 37 Kilowatts and New Nonroad Spark- Ignition Engines at or Below 19 Kilowatts
riate test cycle.
All test results must be reported to the Administrator.
(1) The test procedures to be used are detailed in subpart E of
this part.
(2) Emission test equipment provisions are described in subpart D
of this part.
(b) Administrator testing. (1) The Administrator may require that
any one or more of the test engines be submitted to the Administrator,
at such place or places as the Administrator may designate, for the
purposes of conducting emission tests. The Administrator may specify
that testing will be conducted at the manufacturer's facility, in which
case instrumentation and equipment specified by the Administrator must
be made available by the manufacturer for test operations. Any testing
conducted at a manufacturer's facility must be scheduled by the
manufacturer as promptly as possible.
(2)(i) Whenever the Administrator conducts a test on a test engine,
the results of that test will, unless subsequently invalidated by the
Administrator, comprise the official data for the engine and the
manufacturer's data will not be used in determining compliance with the
Family Emission Limit (FEL).
(ii) Prior to the performance of such a test, the Administrator may
adjust or cause to be adjusted any adjustable parameter of the test
engine which the Administrator has determined to be subject to
adjustment for testing, to any setting within the physically adjustable
range of that parameter, to determine whether the engine conforms to
the applicable Family Emission Limit (FEL).
(iii) For those engine parameters which the Administrator has not
[[Page 52110]]
determined to be subject to adjustment for testing, the test engine
presented to the Administrator for testing will be calibrated within
the production tolerances applicable to the manufacturer specification
shown on the engine label, as specified in the application for
certification.
(c) Use of carryover test data. In lieu of testing, the
manufacturer may submit, with the Administrator's approval, emission
test data used to certify substantially similar engine families in
previous years. This ``carryover'' test data is only allowable if the
data shows the test engine would fully comply with the applicable
Family Emission Limit (FEL).
(d) Scheduled maintenance during testing. No scheduled maintenance
may be performed during testing of the engine.
(e) Unscheduled maintenance on test engines. (1) Manufacturers may
not perform any unscheduled engine, emission control system, or fuel
system adjustment, repair, removal, disassembly, cleaning, or
replacement on a test engine without the advance approval of the
Administrator.
(2) The Administrator may approve such maintenance if:
(i) a preliminary determination has been made that a part failure
or system malfunction, or the repair of such failure or malfunction,
does not render the engine unrepresentative of engines in use, and does
not require direct access to the combustion chamber; and
(ii) a determination has been made that the need for maintenance or
repairs is indicated by an overt malfunction such as persistent
misfire, engine stall, overheating, fluid leakage, or loss of oil
pressure.
(3) Emission measurements may not be used as a means of determining
the need for unscheduled maintenance under paragraph (e)(2) of this
section.
(4) The Administrator must have the opportunity to verify the
extent of any overt indication of part failure (for example, misfire,
stall), or an activation of an audible and/or visual signal, prior to
the manufacturer performing any maintenance related to such overt
indication or signal.
(5) Unless approved by the Administrator prior to use, engine
manufacturers may not use any equipment, instruments, or tools to
identify malfunctioning, maladjusted, or defective engine components
unless the same or equivalent equipment, instruments, or tools are
available at dealerships and other service outlets and are used in
conjunction with scheduled maintenance on such components.
(6) If the Administrator determines that part failure or system
malfunction occurrence and/or repair rendered the engine
unrepresentative of production engines, the engine may not be used as a
test engine.
(7) Unless waived by the Administrator, complete emission tests are
required before and after any engine maintenance which may reasonably
be expected to affect emissions.
(f) Engine failure. A manufacturer may not use as a test engine any
engine which incurs major mechanical failure necessitating disassembly
of the engine. This prohibition does not apply to failures which occur
after completion of the service accumulation period.
(g) In lieu of providing or generating emission data under this
section for existing technology, the Administrator may allow the
manufacturer to demonstrate (on the basis of previous emission tests,
development tests, or other testing information) that the engine will
conform with the applicable FEL.
(h)(1) Manufacturers may select an FEL for existing technology OB/
PWC through: (i) model year 2000 based on the function 151+557/P
0.9 where P=average power of an engine family in kW (sales
weighted). The power of each configuration is the rated output in
kilowatts as determined by SAE J1228. (This procedure has been
incorporated by reference. See Sec. 91.6). The certificate of
conformity would be conditioned by requirements that the manufacturer
submit test data, as determined appropriate by the Administrator under
Sec. 91.118(h) by the end of model year 2000; that the FEL is revised
and approved by EPA to reflect the test data; that the credits
associated with the engine family are recalculated based on the
difference between the old FEL and the new FEL; and that the new FEL
applies to all engines covered by the certificate of conformity; or
(ii) Model year 2003 based on good engineering judgement.
(2) Upon request by the manufacturer, the Administrator has the
discretion to extend the time period set forth in paragraph (h)(1) of
this section for a specific engine family up to model year 2005 if the
Administrator determines that an engine family will be phased out of
U.S. production by model year 2005. As a condition to being granted
such an extension, the manufacturer must discontinue U.S. production
according to the schedule upon which the Administrator based the
extension. Failure to do so by the manufacturer will void the
certificate of conformity ab initio.
(i) A manufacturer request under paragraph (h)(2) of this section
must be in writing and must apply to a specific engine family. The
request must identify the engine family designation, the rationale
supporting the FEL choice, the type of information used as a basis for
the FEL (e.g., previous emission tests, development tests), the
specific source of the information including when the information was
generated, the schedule for phasing the engine family out of U.S.
production, and any other information the Administrator may require.
Sec. 91.119 Certification procedure--use of special test procedures.
(a) Use of special test procedures by EPA. The Administrator may
establish special test procedures for any engine that the Administrator
determines is not susceptible to satisfactory testing under the
specified test procedures set forth in subpart E of this part.
(b) Use of alternative test procedures by an engine manufacturer.
(1) A manufacturer may elect to use an alternative test procedure
provided that it yields results equivalent to the results from the
specified test procedure in subpart E, its use is approved in advance
by the Administrator, and the basis for equivalent results with the
specified test procedures is fully described in the manufacturer's
application.
(2) An engine manufacturer electing to use alternate test
procedures is solely responsible for the results obtained. The
Administrator may reject data generated under test procedures which do
not correlate with data generated under the specified procedures.
Sec. 91.120 Compliance with Family Emission Limits over useful life.
(a) If all test engines representing an engine family have
emissions, as determined in paragraph (c)(3)(iii) of this section, less
than or equal to the applicable Family Emission Limit (FEL) for each
pollutant as determined according to Sec. 91.104 (c), that family
complies with the Family Emission Limit .
(b) If any test engine representing an engine family has emissions
(as determined in paragraph (c)(3)(iii) of this section, greater than
the applicable Family Emission Limit for any pollutant as determined
according to Sec. 91.104(c), that family will be deemed not in
compliance with the Family Emission Limits.
(c)(1) The engine Family Emission Limits (FELs) apply to the
emissions of engines for their useful lives.
(2) Since emission control efficiency generally decreases with the
[[Page 52111]]
accumulation of service on the engine, deterioration factors must be
used in combination with emission data engine test results as the basis
for determining compliance with the standards.
(3)(i) Paragraph (c)(3)(ii) of this section describes the procedure
for determining compliance of an engine with family emission limits,
based on deterioration factors supplied by the manufacturer.
(ii) Separate exhaust emission deterioration factors, determined by
the manufacturer, must be supplied for each engine family. The
deterioration factors must be applied as follows:
(A) For marine spark-ignition engines not utilizing aftertreatment
technology (for example, catalytic converters), the official exhaust
emission results for each emission data engine at the selected test
point are adjusted by adding the appropriate deterioration factor to
the results. However, if the deterioration factor supplied by the
manufacturer is less than zero, it is zero for the purposes of this
paragraph.
(B) For marine spark-ignition engines utilizing aftertreatment
technology (for example, catalytic converters), the official exhaust
emission results for each emission data engine at the selected test
point are adjusted by multiplying the results by the appropriate
deterioration factor. However, if the deterioration factor supplied by
the manufacturer is less than one, it is one for the purposes of this
paragraph.
(iii) The emission values to compare with the Family Emission
Limits (FELs) are the adjusted emission values of paragraph (c)(3)(ii)
of this section, rounded to the same number of significant figures as
contained in the applicable standard in accordance with ASTM E 29-93a,
for each emission data engine. This procedure has been incorporated by
reference. See Sec. 91.6.
Sec. 91.121 Certification procedure--recordkeeping.
(a) The engine manufacturer must maintain the following adequately
organized records:
(1) Copies of all applications and summary information, as
applicable, filed with the Administrator;
(2) A copy of all data obtained through the production line and in-
use testing programs; and
(3) A detailed history of each test engine used for certification
including the following:
(i) A description of the test engine's construction, including a
general description of the origin and buildup of the engine, steps
taken to insure that it is representative of production engines,
description of components specially built for the test engine, and the
origin and description of all emission-related components;
(ii) A description of the method used for engine service
accumulation, including date(s) and the number of hours accumulated;
(iii) A description of all maintenance, including modifications,
parts changes, and other servicing performed, and the date(s), and
reason(s) for such maintenance;
(iv) A description of all emission tests performed, including
routine and standard test documentation, as specified in subpart E of
this part, date(s), and the purpose of each test;
(v) A description of all tests performed to diagnose engine or
emission control performance, giving the date and time of each and the
reason(s) for the test; and
(vi) A description of any significant event(s) affecting the engine
during the period covered by the history of the test engine but not
described by an entry under one of the previous paragraphs of this
section.
(b) Routine emission test data, such as test cell temperature and
relative humidity at start and finish of test and raw emission results
from each mode or test phase, must be retained for a period of one year
after issuance of all certificates of conformity to which they relate.
All other information specified in paragraph (a) of this section must
be retained for a period of eight years after issuance of all
certificates of conformity to which they relate.
(c) Records may be kept in any format and on any media, provided
that, at the Administrator's request, organized, written records in
English are promptly supplied by the manufacturer.
(d) The manufacturer must supply, at the Administrator's request,
copies of any engine maintenance instructions or explanations issued by
the manufacturer.
Sec. 91.122 Amending the application and certificate of conformity.
(a) The marine engine manufacturer must notify the Administrator
(1) When either an engine is to be added to a certificate of
conformity or changes are to be made to a product line covered by a
certificate of conformity which may potentially affect emissions,
emissions durability, an emission related part, or the durability of an
emission related part. Notification occurs when the manufacturer
submits and EPA receives a request to amend the original application
prior to either producing such engines or making such changes to a
product line. For existing technology OB/PWC engines only, notification
may occur periodically but must occur at least on a quarterly basis and
may be submitted summarily as determined by the Administrator.
(2) When an FEL is changed for an engine family, as allowed under
Sec. 91.203. Notification occurs when the manufacturer submits and EPA
receives a request to amend the original application. The manufacturer
may not change an FEL unless compliance under Sec. 91.207(b) is
maintained through the use of the revised FEL.
(b) The request to amend the engine manufacturer's existing
certificate of conformity must include the following information:
(1) A full description of the engine to be added or the change(s)
to be made in production;
(2) The manufacturer's proposed test engine selection(s); and
(3) Engineering evaluations or reasons why the original test engine
or FEL is or is not still appropriate.
(c) The Administrator may require the engine manufacturer to
perform tests on an engine representing the engine to be added or
changed.
(d) Decision by Administrator.
(1) Based on the submitted request and data derived from such
testing as the Administrator may require or conduct, the Administrator
must determine whether the proposed addition or change would still be
covered by the certificate of conformity then in effect.
(2) If the Administrator determines that the new or changed
engine(s) meets the requirements of this subpart and the Act, the
appropriate certificate of conformity will be amended.
(3) If the Administrator determines that the new or changed engines
would not be covered by the certificate of conformity, the
Administrator must provide a written explanation to the engine
manufacturer of his or her decision not to amend the certificate. The
manufacturer may request a hearing on a denial. See Sec. 91.125.
(4) If the Administrator determines that the revised FEL meets the
requirements of this subpart and the Act, the appropriate certificate
of conformity will be amended to reflect the revised FEL. The
certificate of conformity is revised conditional upon compliance under
Sec. 91.207(b).
(e)(1) Alternatively, an engine manufacturer may make changes in or
additions to production engines concurrently with requesting to amend
the application or certification of conformity as set forth in
paragraph (b) of this section, if the manufacturer determines that all
affected engines will
[[Page 52112]]
still meet applicable Family Emission Limits (FELs). The engine
manufacturer must supply supporting documentation, test data, and
engineering evaluations as appropriate to support its determination.
(2) If, after a review, the Administrator determines additional
testing is required, the engine manufacturer must provide required test
data within 30 days or cease production of the affected engines.
(3) If the Administrator determines that the affected engines do
not meet applicable requirements, the Administrator will notify the
engine manufacturer to cease production of the affected engines.
Sec. 91.123 Denial, revocation of certificate of conformity.
(a) If, after review of the engine manufacturer's application,
request for certification, information obtained from any inspection,
and any other information the Administrator may require, the
Administrator determines that the test engine or engine family does not
meet applicable requirements or the Family Emission Limit (FEL), the
Administrator will notify the manufacturer in writing, setting forth
the basis for this determination.
(b) Notwithstanding the fact that engines described in the
application may comply with all other requirements of this subpart, the
Administrator may deny the issuance of or revoke a previously issued
certificate of conformity if the Administrator finds any one of the
following infractions to be substantial:
(1) The engine manufacturer submits false or incomplete
information;
(2) The engine manufacturer denies an EPA enforcement officer or
EPA authorized representative the opportunity to conduct authorized
inspections;
(3) The engine manufacturer fails to supply requested information
or amend its application to include all engines being produced;
(4) The engine manufacturer renders inaccurate any test data which
it submits or otherwise circumvents the intent of the Act or this part;
(5) The engine manufacturer denies an EPA enforcement officer or
EPA authorized representative reasonable assistance (as defined in
Sec. 91.505); or
(6) The engine manufacturer fails to initiate, perform or submit
required data generated from the production line and in-use testing
programs to EPA.
(c) If any manufacturer knowingly commits an infraction specified
in paragraph (b)(1), (b)(4), or (b)(6) of this section or knowingly
commits any other fraudulent act which results in the issuance of a
certificate of conformity, or fails to comply with the conditions
specified in Secs. 91.203(f), 91.206(d), 91.208(c) or 91.209(g), the
Administrator may void such certificate ab initio.
(d) When the Administrator denies, revokes, or voids ab initio a
certificate of conformity, the engine manufacturer will be provided a
written determination. The manufacturer may request a hearing on the
Administrator's decision.
(e) Any revocation of a certificate of conformity extends no
further than to forbid the introduction into commerce of those engines
previously covered by the certificate which are still in the possession
of the engine manufacturer, except in cases of such fraud or other
misconduct that makes the certificate void ab initio.
Sec. 91.124 Request for hearing.
(a) An engine manufacturer may request a hearing on the
Administrator's denial or revocation or voiding ab initio of a
certificate of conformity.
(b) The engine manufacturer's request must be filed within 30 days
of the Administrator's decision, be in writing, and set forth the
manufacturer's objections to the Administrator's decision and data to
support the objections.
(c) If, after review of the request and supporting data, the
Administrator finds that the request raises a substantial and factual
issue, the Administrator will grant the engine manufacturer's request
for a hearing.
Sec. 91.125 Hearing procedures.
The hearing procedures set forth in Secs. 91.513, 91.514, and
91.515 apply to this subpart.
Sec. 91.126 Right of entry and access.
Any engine manufacturer who has applied for certification of a new
engine or engine family subject to certification testing under this
subpart must admit or cause to be admitted to any applicable facilities
during operating hours any EPA enforcement officer or EPA authorized
representative as provided in Sec. 91.505.
Subpart C--Averaging, Banking, and Trading Provisions
Sec. 91.201 Applicability.
The requirements of this subpart C are applicable to all marine
spark-ignition engines subject to the provisions of subpart A of this
part 91.
Sec. 91.202 Definitions.
The definitions in subpart A of this part apply to this subpart.
The following definitions also apply to this subpart:
Averaging for marine SI engines means the exchange of emission
credits among engine families within a given manufacturer's product
line.
Banking means the retention of marine SI engine emission credits by
the manufacturer generating the emission credits for use in future
model year averaging or trading as permitted by these regulations.
Eligible sales means marine SI engines sold for purposes of being
used in the United States and include any engine introduced into
commerce in the U.S. to be sold for use in the U.S.
Emission credits represent the amount of emission reduction or
exceedance, by a marine SI engine family, below or above the applicable
emission standard, respectively. Emission reductions below the standard
are considered as ``positive credits,'' while emission exceedances
above the standard are considered as ``negative credits.'' In addition,
``projected credits'' refer to emission credits based on the projected
applicable production/sales volume of the engine family. ``Reserved
credits'' are emission credits generated within a model year waiting to
be reported to EPA at the end of the model year. ``Actual credits''
refer to emission credits based on actual applicable production/sales
volume as contained in the end-of-year reports submitted to EPA. Some
or all of these credits may be revoked if EPA review of the end-of-year
reports or any subsequent audit action(s) uncovers problems or errors.
Point of first retail sale means the point at which the engine is
first sold directly to an end user. Generally, this point is the retail
boat or engine dealer. If the engine is sold first to a boat or vessel
manufacturer for installation in a boat or vessel, the boat or vessel
manufacturer may be the point of first retail sale if the boat or
vessel manufacturer can determine if the engine is or is not exported
once they have sold the boat or vessel. If the boat or vessel
manufacturer cannot determine if the engine is or is not exported once
they have sold the boat or vessel, the engine is presumed to not be
exported, unless the engine manufacturer can demonstrate otherwise.
Engine manufacturers must include engines in their average if the
engine is exported and subsequently imported into the United States
installed in a boat or vessel and introduced into United States
commerce.
[[Page 52113]]
Trading means the exchange of marine engine emission credits
between manufacturers.
Sec. 91.203 General provisions.
(a) The certification averaging, banking, and trading provisions
for hydrocarbon plus oxides of nitrogen emissions from eligible marine
SI engines are described in this subpart.
(b) A marine SI engine family must use the averaging provisions and
may use the banking and trading provisions for hydrocarbon plus oxides
of nitrogen emissions if it is subject to regulation under subpart B of
this part with certain exceptions specified in paragraph (c) of this
section.
(c) Manufacturers of marine SI engines may not use the banking and
trading provisions for new marine SI engines:
(1) which are exported, or
(2) which are subject to state engine emission standards unless the
manufacturer demonstrates to the Administrator that inclusion of these
engines in banking and trading is appropriate.
(d) A manufacturer may certify marine SI engine families at Family
Emission Limits (FELs) above or below the applicable emission standard,
provided the summation of the manufacturer's projected balance of all
credit transactions in a given model year is greater than or equal to
zero, as determined under Sec. 91.207.
(1) A manufacturer of an engine family with an FEL exceeding the
applicable emission standard must obtain positive emission credits
sufficient to address the associated credit shortfall via averaging,
banking, or trading.
(2) An engine family with an FEL below the applicable emission
standard may generate positive emission credits for averaging, banking,
or trading, or a combination thereof. Emission credits may not be used
to offset an engine family's emissions that exceed its applicable FEL.
Credits may not be used to remedy nonconformity determined by a
production line testing, a Selective Enforcement Audit (SEA) or by
recall (in-use) testing. However, in the case of a manufacturer
production line testing or SEA failure, credits may be used to allow
subsequent production of engines for the family in question if the
manufacturer elects to recertify to a higher FEL. In the case of
production line testing a manufacturer may revise the FEL based upon
production line testing results obtained under subpart F and upon
Administrator approval pursuant to Sec. 91.122(d).
(e) Credits generated in a given model year may be used in the
following three model years. Credits not used by the end of the third
model year after being generated are forfeited. Credits generated in
one model year may not be used for prior model years, unless allowed
under Sec. 91.207.
(f) Manufacturers must demonstrate compliance under the averaging,
banking, and trading provisions for a particular model year by 270 days
after the model year. An engine family generating negative credits for
which the manufacturer does not obtain or generate an adequate number
of positive credits from the same or previous model years will violate
the conditions of the certificate of conformity. The certificate of
conformity may be voided ab initio pursuant to Sec. 91.123 for this
engine family.
Sec. 91.204 Averaging.
(a) Negative credits from engine families with FELs above the
applicable emission standard must be offset by positive credits from
engine families below the applicable emission standard, as allowed
under the provisions of this subpart. Averaging of credits in this
manner is used to determine compliance under Sec. 91.207(b).
(b) For model years through 2000, outboard credits may not be
summed with personal watercraft credits, or vice versa, for purposes of
compliance under Sec. 91.207, except manufacturers may, at their
discretion, include personal watercraft credits with outboard credits
upon demonstration to the satisfaction of the Administrator that the
personal watercraft engine is installed in a hybrid vessel that is
smaller than a typical sterndrive or inboard vessel and larger than a
typical personal watercraft. For model year 2001 and later,
manufacturers must sum credits generated from outboard and personal
watercraft to determine compliance under Sec. 91.207.
(c) Credits used in averaging may be obtained from credits
generated by another engine family as allowed under Sec. 91.204(b), in
the same model year, credits banked in the three previous model years,
or credits obtained through trading.
Sec. 91.205 Banking.
(a) A manufacturer of a marine SI engine family with an FEL below
the applicable emission standard for a given model year may bank
credits in that model year for use in averaging and trading in the
following three model years. Negative credits must be banked according
to the requirements under Sec. 91.207(c). Positive credits not used
within the three model years after they are banked are forfeited.
(1) early banking
(i) For outboard engines in model year (MY) 1997, a manufacturer
may bank positive emission credits if the following conditions are met:
the manufacturer certifies their entire marine outboard engine product
line for MY 1997 under the emission standards applicable to MY 1998,
the manufacturer demonstrates compliance with the corporate average
standard under Sec. 91.207(b), and the sum of positive and negative
credits under Sec. 91.207 generates positive emission credits, when the
following formula is used for purposes of the applicable standard in
Sec. 91.207(a). The number of credits that may be banked under this
paragraph is the number of positive emission credits generated under
the provisions of the preceding sentence. Marine engines certified
under the provisions of this paragraph are subject to all of the
requirements of this part.
Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission Standards
[Grams per kilowatt-hour]
------------------------------------------------------------------------
P<4.3 kW
HC+NOX
Model year Emission P>4.3 kW HC+NOX emission
standard by standard by model year
model year
------------------------------------------------------------------------
1997................... 276 (0.959 x (151 + 557/
P0.9)+1.22)
------------------------------------------------------------------------
(ii) For personal watercraft engines in model year 1998, a
manufacturer may bank positive emission credits if the following
conditions are met: The manufacturer certifies their entire marine
personal watercraft engine product line for MY 1998 under the emission
standards applicable to 1998 model year outboard engine emission
standards, the manufacturer demonstrates compliance with the corporate
average standard under Sec. 91.207(b), and the sum of positive and
negative credits under Sec. 91.207 generates positive emission credits,
when the following formula is used for purposes of the applicable
standard Sec. 91.207(a). The number of credits that may be banked under
this paragraph is the number of positive emission credits generated
under the provisions of the preceding sentence. Marine engines
certified under the provisions of this paragraph are subject to all of
the requirements of this part.
[[Page 52114]]
Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission Standards
[Grams per kilowatt-hour]
------------------------------------------------------------------------
P<4.3 kW
HC+NOX
Model year emission P> 4.3 kW HC+NOX emission
standard by standard by model year
model year
------------------------------------------------------------------------
1998................... 276 (0.959 x (151 + 557/P0.9)) +
1.22)
------------------------------------------------------------------------
(ii) For personal watercraft in model year 1997, a manufacturer may
bank positive emission credits if the following conditions are met: the
manufacturer certifies their entire marine personal watercraft engine
product line for MY 1997 under the emission standards specified in the
formula below for PWC, the manufacturer demonstrates compliance with
the corporate average standard under Sec. 91.207(b), and the sum of
positive and negative credits under Sec. 91.207 generates positive
emission credits, when the following formula is used for purposes of
the applicable standard in Sec. 91.207(a). The number of credits that
may be banked under this paragraph is the number of positive emission
credits generated under the provisions of the preceding sentence.
Marine engines certified under the provisions of this paragraph are
subject to all of the requirements of this part.
Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission Standards
[Grams per kilowatt-hour]
------------------------------------------------------------------------
P<4.3 kW
HC+NOX
Model year emission P> 4.3 kW HC+NOX emission
standard by standard by model year
model year
------------------------------------------------------------------------
1997................... 276 (0.959 x (151 + 557/P0.9)) +
1.22)
------------------------------------------------------------------------
(b) A manufacturer may bank actual credits only after the end of
the model year and after EPA has reviewed the manufacturer's end-of-
year reports. During the model year and before submittal of the end-of-
year report, credits originally designated in the certification process
for banking will be considered reserved and may be redesignated for
trading or averaging in the end-of-year report and final report.
(c) Credits declared for banking from the previous model year that
have not been reviewed by EPA may be used in averaging or trading
transactions. However, such credits may be revoked at a later time
following EPA review of the end-of-year report or any subsequent audit
actions.
Sec. 91.206 Trading.
(a) A marine SI engine manufacturer may exchange emission credits
with other marine SI engine manufacturers in trading. These credits
must be used in the same averaging set as generated.
(b) Credits for trading can be obtained from credits banked in the
three previous model years or credits generated during the model year
of the trading transaction. Traded credits expire if they are not used
in averaging within three model years following the model year in which
they were generated.
(c) Traded credits can be used for averaging, banking, or further
trading transactions.
(d) In the event of a negative credit balance resulting from a
transaction, both the buyer and the seller are liable, except in cases
involving fraud. Certificates of all engine families participating in a
negative trade may be voided ab initio pursuant to Sec. 91.123.
Sec. 91.207 Credit calculation and manufacturer compliance with
emission standards.
(a) For each engine family, certification emission credits
(positive or negative) are to be calculated according to the following
equation and rounded, in accordance with ASTM E29-93a, to the nearest
gram. ASTM E29-93a has been incorporated by reference. See Sec. 91.6.
Consistent units are to be used throughout the equation. The following
equation is used to determine hydrocarbon plus oxides of nitrogen
credit status for an engine family, whether generating positive credits
or negative credits:
[GRAPHIC] [TIFF OMITTED] TR04OC96.004
Where:
sales = the number of eligible sales tracked to the point of first
retail sale for the given engine family during the model year. Annual
production projections are used to project credit availability for
initial certification. Actual sales volume is used in determining
actual credits for end of-year compliance determination.
t = time in model years
Power = the average power of an engine family in kW (sales weighted).
The power of each configuration is the rated output in kilowatts as
determined by SAE J1228. This procedure has been incorporated by
reference. See Sec. 91.6.
max actual life = maximum actual life specific to the power rating and
the application; max actual life = 2life
life = average actual life in years, specific to the
power rating and the application as given below.
[GRAPHIC] [TIFF OMITTED] TR04OC96.054
Power = as defined above.
use = mean use in hours per year. For outboard engines,
use = 34.8 hrs /yr. For personal watercraft,
use = 77.3 hrs/yr;
[[Page 52115]]
S(t)=cumulative fraction survived at time t;
S(t)=e-(t x 0.906/life)4.0
STD=the current and applicable marine SI engine emission standard in
grams per kilowatt hour as determined in Sec. 91.104.
FEL=the family emission limit for the engine family in grams per
kilowatt hour.
(b) Manufacturer compliance with the corporate average emission
standard is determined on a corporate average basis at the end of each
model year. A manufacturer is in compliance when the sum of positive
and negative emission credits it holds is greater than or equal to
zero, except as allowed under paragraph (c) of this section.
(c)(1) Outboard Engines
(i) For model year 1998, a manufacturer is in compliance when the
sum of positive credits and negative emission credits it holds is
greater than or equal to zero, including
(A) Credits generated in MY 1998 exceed 70% of the negative credits
generated in MY 1998. The remaining negative credits (up to 30% of the
total negative credits) must be banked.
(ii) For model year 1999, a manufacturer is in compliance when the
positive credits generated in MY 1999 exceed the sum of 80% of the
negative credits generated in MY 1999 and the negative credits banked
in 1998. The remaining negative credits (up to 20% of the total
negative credits) must be banked.
(iii) For model year 2000, a manufacturer is in compliance when the
sum of positive and negative emission credits it holds is greater than
or equal to zero, including
(A) The negative credits banked in MY 1998 and MY 1999 and
(B) Any adjustments to credits based on adjustments to FELs
resulting from requirements in Sec. 91.118(h)(1)(i). Manufacturers do
not have to recalculate compliance for model years 1998 and 1999.
(2) Personal Watercraft Engines
(i) For model year 1999, a manufacturer is in compliance when the
positive credits generated in MY 1999 exceed 50% of the negative
credits generated in MY 1999. The remaining negative credits (up to 50%
of the total negative credits) must be banked.
(ii) For model year 2000, a manufacturer is in compliance when the
sum of positive and negative emission credits it holds is greater than
or equal to zero, including
(A) The negative credits banked in 1999 and
(B) Any adjustments to credits based on adjustments to FELs
resulting from requirements in Sec. 91.118(h)(1)(i). Manufacturers do
not have to recalculate compliance for model year 1999.
(d) When a manufacturer is not in compliance, the manufacturer will
be in violation of these regulations and EPA may void ab initio the
certificates of engine families for which the manufacturer has not
obtained sufficient positive emission credits pursuant to Sec. 91.123.
Sec. 91.208 Certification.
(a) In the application for certification a manufacturer must:
(1) Submit a statement that the engines for which certification is
requested will not, to the best of the manufacturer's belief, cause the
manufacturer to be in noncompliance under Sec. 91.207(b) when all
credits are calculated for all the manufacturer's engine families.
(2) Declare an FEL for each engine family for HC plus NOX. The
FEL must have the same number of significant digits as the emission
standard.
(3) Indicate the projected number of credits generated/needed for
this family; the projected applicable production/sales volume, by
quarter; and the values required to calculate credits as given in
Sec. 91.207.
(4) Submit calculations in accordance with Sec. 91.207 of projected
emission credits (positive or negative) based on quarterly production
projections for each family.
(5) (i) If the engine family is projected to have negative emission
credits, state specifically the source (manufacturer/engine family or
reserved) of the credits necessary to offset the credit deficit
according to quarterly projected production.
(ii) If the engine family is projected to generate credits, state
specifically (manufacturer/engine family or reserved) where the
quarterly projected credits will be applied.
(b) All certificates issued are conditional upon manufacturer
compliance with the provisions of this subpart both during and after
the model year of production.
(c) Failure to comply with all provisions of this subpart will be
considered to be a failure to satisfy the conditions upon which the
certificate was issued, and the certificate may be deemed void ab
initio pursuant to Sec. 91.123.
(d) The manufacturer bears the burden of establishing to the
satisfaction of the Administrator that the conditions upon which the
certificate was issued were satisfied or waived.
(e) Projected credits based on information supplied in the
certification application may be used to obtain a certificate of
conformity. However, any such credits may be revoked based on review of
end-of-year reports, follow-up audits, and any other verification steps
deemed appropriate by the Administrator.
Sec. 91.209 Maintenance of records.
(a) The manufacturer must establish, maintain, and retain the
following adequately organized and indexed records for each engine
produced:
(1) EPA engine family,
(2) Engine identification number,
(3) Engine model year and build date,
(4) Power rating,
(5) Purchaser and destination, and
(6) Assembly plant.
(b) The manufacturer must establish, maintain, and retain the
following adequately organized and indexed records for each engine
family:
(1) EPA engine family identification code,
(2) Family Emission Limit (FEL) or FELs where FEL changes have been
implemented during the model year,
(3) Power rating for each configuration tested,
(4) Projected sales volume for the model year, and
(5) Actual sales volume for the model year for each FEL where FEL
changes have been implemented during the model year.
(c) Any manufacturer producing an engine family participating in
trading reserved credits must maintain the following records on a
quarterly basis for each such engine family:
(1) The engine family,
(2) The actual quarterly and cumulative applicable production/sales
volume,
(3) The values required to calculate credits as given in
Sec. 91.207,
(4) The resulting type and number of credits generated/required,
(5) How and where credit surpluses are dispersed, and
(6) How and through what means credit deficits are met.
(d) The manufacturer must retain all records required to be
maintained under this section for a period of eight years from the due
date for the end-of-model year report. Records may be retained as hard
copy or reduced to microfilm, ADP diskettes, and so forth, depending on
the manufacturer's record retention procedure; provided, that in every
case all information contained in the hard copy is retained.
(e) Nothing in this section limits the Administrator's discretion
in requiring the manufacturer to retain additional
[[Page 52116]]
records or submit information not specifically required by this
section.
(f) Pursuant to a request made by the Administrator, the
manufacturer must submit to the Administrator the information that the
manufacturer is required to retain.
(g) EPA may void ab initio a certificate of conformity for an
engine family for which the manufacturer fails to retain the records
required in this section or to provide such information to the
Administrator upon request pursuant to Sec. 91.123.
Sec. 91.210 End-of-year and final reports.
(a) End-of-year and final reports must indicate the engine family,
the actual sales volume, the values required to calculate credits as
given in Sec. 91.207, and the number of credits generated/required.
Manufacturers must also submit how and where credit surpluses were
dispersed (or are to be banked) and/or how and through what means
credit deficits were met. Copies of contracts related to credit trading
must be included or supplied by the broker, if applicable. The report
must include a calculation of credit balances to show that the credit
summation is equal to or greater than zero.
(b) The sales volume for end-of-year and final reports must be
based on the location of the point of first retail sale (for example,
retail customer or dealer) also called the final product purchase
location.
(c)(1) End-of-year reports must be submitted within 90 days of the
end of the model year to: Manager, Engine Compliance Programs Group
(6403-J), US Environmental Protection Agency, 401 M Street SW,
Washington, DC 20460.
(2) Final reports must be submitted within 270 days of the end of
the model year to: Manager, Engine Compliance Programs Group (6403-J),
U.S. Environmental Protection Agency, 401 M Street SW, Washington, DC
20460.
(d) Failure by a manufacturer to submit any end-of-year or final
reports in the specified time for all engines is a violation of
Sec. 91.1103(a)(2) and section 213(d) of the Clean Air Act for each
engine.
(e) A manufacturer generating credits for banking only who fails to
submit end-of-year reports in the applicable specified time period (90
days after the end of the model year) may not use the credits until
such reports are received and reviewed by EPA. Use of projected credits
pending EPA review is not permitted in these circumstances.
(f) Errors discovered by EPA or the manufacturer in the end-of-year
report, including errors in credit calculation, may be corrected in the
final report up to 270 days from the end of the model year.
(g) If EPA or the manufacturer determines that a reporting error
occurred on an end-of-year or final report previously submitted to EPA
under this section, the manufacturer's credits and credit calculations
must be recalculated. Erroneous positive credits will be void except as
provided in paragraph (h) of this section. Erroneous negative credit
balances may be adjusted by EPA.
(h) If within 270 days of the end of the model year, EPA review
determines a reporting error in the manufacturer's favor (that is,
resulting in an increased credit balance) or if the manufacturer
discovers such an error within 270 days of the end of the model year,
EPA shall restore the credits for use by the manufacturer.
Sec. 91.211 Notice of opportunity for hearing.
Any voiding of the certificate under Secs. 91.203(f), 91.206(d),
91.207(d), 91.208(c), or Sec. 91.209(g) shall be made only after the
manufacturer concerned is offered an opportunity for a hearing
conducted in accordance with Secs. 91.512, 91.513 and 91.514 and, if a
manufacturer requests such a hearing, will be made only after an
initial decision by the Presiding Officer.
Subpart D--Emission Test Equipment Provisions
Sec. 91.301 Scope; applicability.
(a) This subpart describes the equipment required in order to
perform exhaust emission tests on new marine gasoline-fueled spark-
ignition propulsion engines subject to the provisions of subpart A of
this part 91.
(b) Exhaust gases are sampled while the test engine is operated
using a steady state test cycle on an engine dynamometer. Exhaust gas
sampling may be performed using either the raw gas sampling method or
the constant volume sampling (CVS) method. The exhaust gases receive
specific component analysis determining concentration of pollutant,
exhaust volume, the fuel flow, and the power output during each mode.
Emissions are reported on a gram per brake-kilowatt hour (g/kW-hr). See
subpart E of this part for a complete description of the test
procedure.
(c) Additional information about system design, calibration
methodologies, and so forth, for raw gas sampling can be found in part
86, subpart D of this chapter. Examples for system design, calibration
methodologies, and so forth, for dilute sampling can be found in part
86, subpart N of this chapter.
Sec. 91.302 Definitions.
The definitions in Sec. 91.3 apply to this subpart.
Sec. 91.303 Acronyms and abbreviations.
(a) The acronyms and abbreviations in Sec. 91.5 apply to this
subpart.
(b) The symbols in Table 1 in appendix A of this subpart apply to
this subpart.
Sec. 91.304 Test equipment overview.
(a) All engines subject to this subpart are tested for exhaust
emissions. Engines are operated on dynamometers meeting the
specification given in Sec. 91.305.
(b) The exhaust is tested for gaseous emissions using either a
constant volume sampling (CVS) system as described in Sec. 91.414, or
using the raw gas sampling system as described in Sec. 91.421. Both
systems require analyzers (see paragraph (c) of this section) specific
to the pollutant being measured.
(c) Analyzers used are a non-dispersive infrared detector (NDIR)
absorption type for carbon monoxide and carbon dioxide analysis;
paramagnetic detector (PMD), zirconia (ZRDO), or electrochemical type
(ECS) for oxygen analysis; a flame ionization detector (FID) or heated
flame ionization detector (HFID) type for hydrocarbon analysis; and a
chemiluminescent detector (CLD) or heated chemiluminescent detector
(HCLD) for oxides of nitrogen analysis.
Sec. 91.305 Dynamometer specifications and calibration accuracy.
(a) Dynamometer specifications. (1) The dynamometer test stand and
other instruments for measurement of engine speed and torque must meet
the accuracy requirements shown in Table 2 in appendix A to this
subpart. The dynamometer must be capable of performing the test cycle
described in Sec. 91.410.
(b) Dynamometer calibration accuracy. (1) The dynamometer test
stand and other instruments for measurement of engine torque and speed
must meet the calibration frequency shown in Table 2 in appendix to
this subpart.
(2) A minimum of three calibration weights for each range used is
required. The weights must be equally spaced and traceable to within
0.5 percent of National Institute of Standards and Testing (NIST)
weights. Laboratories located in foreign countries may certify
calibration weights to local government bureau standards.
[[Page 52117]]
Sec. 91.306 Dynamometer torque cell calibration.
(a)(1) Any lever arm used to convert a weight or a force through a
distance into a torque must be used in a horizontal position for
horizontal shaft dynamometers ( five degrees). For vertical
shaft dynamometers, a pulley system may be used to convert the
dynamometer's horizontal loading into the vertical plane.
(2) Calculate the indicated torque (IT) for each calibration weight
to be used by:
IT=Moment Arm (meters) X Calibration Weight (Newtons)
(3) Attach each calibration weight specified in Sec. 91.305(b)(2)
to the moment arm at the calibration distance determined in paragraph
(a)(2) of this section. Record the power measurement equipment response
(N-m) to each weight.
(4) Compare the torque value measured to the calculated torque.
(5) The measured torque must be within two percent of the
calculated torque.
(6) If the measured torque is not within two percent of the
calculated torque, adjust or repair the system. Repeat steps in
paragraphs (a)(1) through (a)(6) of this section with the adjusted or
repaired system.
(b) Option. A master load-cell or transfer standard may be used to
verify the torque measurement system.
(1) The master load-cell and read out system must be calibrated
with weights specified in Sec. 91.305(b)(2).
(2) Attach the master load-cell and loading system.
(3) Load the dynamometer to a minimum of three equally spaced
torque values as indicated by the master load-cell for each in-use
range used.
(4) The in-use torque measurement must be within two percent of the
torque measured by the master system for each load used.
(5) If the in-use torque is not within two percent of the master
torque, adjust or repair the system. Repeat steps in paragraphs (b)(2)
through (b)(4) of this section with the adjusted or repaired system.
(c) Calibrated resistors may not be used for dynamometer torque
transducer calibration, but may be used to span the transducer prior to
engine testing.
(d) Other engine dynamometer system calibrations such as speed are
performed as specified by the dynamometer manufacturer or as dictated
by good engineering practice.
Sec. 91.307 Engine cooling system.
An engine cooling system is required with sufficient capacity to
maintain the engine at normal operating temperatures as prescribed by
the engine manufacturer. Auxiliary fan(s) may be used to maintain
sufficient engine cooling during dynamometer operation.
Sec. 91.308 Lubricating oil and test fuel.
(a) Lubricating oil. (1) Use the engine lubricating oil which meets
the marine engine manufacturer's requirements for a particular engine
and intended usage. Record the specifications of the lubricating oil
used for the test.
(2) For two-stroke engines, the fuel/oil mixture ratio must be that
which is recommended by the manufacturer. If the flow rate of the oil
in the engine is greater than two percent of the fuel flow rate, then
the oil supplied to the engine must be added to the fuel flow in the
emission calculations described in Sec. 91.419 and Sec. 91.426. Good
engineering judgment may be used to estimate oil flow when oil
injection is used.
(b) Test fuels--certification. The manufacturer must use gasoline
having the specifications or substantially equivalent specifications
approved by the Administrator, as specified in Table 3 in appendix A of
this subpart for exhaust emission testing of gasoline fueled engines.
The specification range of the fuel to be used under this paragraph
must be reported in accordance with Sec. 91.109(d).
(c) Test fuels--service accumulation. (1) Unleaded gasoline
representative of commercial gasoline which will be generally available
through retail outlets must be used in service accumulation for
gasoline-fueled marine engines. As an alternative, the certification
test fuels specified under paragraph (b) of this section for engine
service accumulation. Leaded fuel may not be used during service
accumulation.
(2) The octane rating of the gasoline used may not be higher than
4.0 research octane numbers above the minimum recommended by the
manufacturer and have a minimum sensitivity of 7.5 octane numbers,
where sensitivity is defined as research octane number minus motor
octane number.
(d) Other fuels may be used for testing provided:
(1) They are commercially viable,
(2) Information, acceptable to the Administrator, is provided to
show that only the designated fuel would be used in customer service,
(3) Use of a fuel listed under paragraph (b) of this section would
have a detrimental effect on emissions or durability; and
(4) The Administrator provides written approval of the fuel
specifications prior to the start of testing.
Sec. 91.309 Engine intake air temperature measurement.
(a) Engine intake air temperature measurement must be made within
100 cm of the air-intake of the engine. The measurement location must
be either in the supply system or in the air stream entering the
engine.
(b) The temperature measurements must be accurate to within
2 deg.C.
Sec. 91.310 Engine intake air humidity measurement.
This section refers to engines which are supplied with intake air
other than the ambient air in the test cell (i.e., air which has been
pumbed directly to the engine air intake system). For engines which use
ambient test cell air for the engine intake air, the ambient testcell
humidity measurement may be used.
(a) Humidity conditioned air supply. Air that has had its absolute
humidity altered is considered humidity-conditioned air. For this type
of intake air supply, the humidity measurements must be made within the
intake air supply system, and after the humidity conditioning has taken
place.
(b) Unconditioned air supply. Humidity measurements in
unconditioned intake air supply must be made in the intake air stream
entering the engine. Alternatively, the humidity measurements can be
measured within the intake air stream entering the supply system.
Sec. 91.311 Test conditions.
(a) General requirements. (1) Ambient temperature levels
encountered by the test engine throughout the test sequence may not be
less than 20 deg.C nor more than 30 deg.C.
(2) Calculate all volumes and volumetric flow rates at standard
conditions for temperature and pressure. Use these conditions
consistently throughout all calculations. Standard conditions for
temperature and pressure are 25 deg.C and 101.3 kPa.
(b) Engine test conditions. Measure the absolute temperature
(designated as T and expressed in Kelvin) of the engine air at the
inlet to the engine and the dry atmospheric pressure (designated as
ps and expressed in kPa. Determine the parameter f according to
the following provisions:
(1) Naturally aspirated and mechanically supercharged engines:
[GRAPHIC] [TIFF OMITTED] TR04OC96.005
[[Page 52118]]
(2) Turbocharged engine with or without cooling of inlet air:
[GRAPHIC] [TIFF OMITTED] TR04OC96.006
(3) For a test to be recognized as valid, the parameter f must be
between the limits as shown below:
[GRAPHIC] [TIFF OMITTED] TR04OC96.007
Sec. 91.312 Analytical gases.
(a) The shelf life of a calibration gas may not be exceeded. Record
the expiration date stated by the gas supplier for each calibration
gas.
(b) Pure gases. The required purity of the gases is defined by the
contamination limits given in parenthesis. The following gases must be
available for operation.
(1) Purified nitrogen, also referred to as ``zero-grade nitrogen''
(Contamination1 ppm C, 1 ppm CO, 400
ppm CO2, 0.1 ppm NO)
(2) Purified oxygen (Purity 99.5 percent vol O2)
(3) Hydrogen-helium mixture (402 percent hydrogen,
balance helium) (Contamination1 ppm C, 400 ppm
CO)
(4) Purified synthetic air, also referred to as ``zero gas''
(Contamination1 ppm C, 1 ppm CO, 400
ppm CO2, 0.1 ppm NO) (Oxygen content between 18-21
percent vol.)
(c) Calibration and span gases. (1) Calibration gas values are to
be derived from NIST ``Standard Reference Materials'' (SRM's) or other
local gas standards and are to be single blends as specified in this
subsection.
(2) Mixtures of gases having the following chemical compositions
must be available:
C3H8 and purified synthetic air (dilute measurements);
C3H8 and purified nitrogen (raw measurements);
CO and purified nitrogen;
NOX and purified nitrogen (the amount of NO2 contained in
this calibration gas must not exceed five percent of the NO content);
CO2 and purified nitrogen.
Note: For the HFID or FID, the manufacturer may choose to use as
a diluent span gas and the calibration gas either purified synthetic
air or purified nitrogen. Any mixture of C3H8 and purified
synthetic air which contains a concentration of propane higher than
what a gas supplier considers to be safe may be substituted with a
mixture of C3H8 and purified nitrogen. However, the
manufacturer must be consistent in the choice of diluent (zero air
or purified nitrogen) between the calibration and span gases. If a
manufacturer chooses to use C3H8 and purified nitrogen for
the calibration gases, then purified nitrogen must be the diluent
for the span gases.
(3) The true concentration of a span gas must be within
two percent of the NIST gas standard. The true
concentration of a calibration gas must be within one
percent of the NIST gas standard. The use of precision blending devices
(gas dividers) to obtain the required calibration gas concentrations is
acceptable. Give all concentrations of calibration gas on a volume
basis (volume percent or volume ppm).
(4) The gas concentrations used for calibration and span may also
be obtained by means of a gas divider, diluting with purified N2
or with purified synthetic air. The accuracy of the mixing device must
be such that the concentration of the diluted gases may be determined
to within two percent.
(d) Oxygen interference check gases must contain propane with 350
ppmC 75 ppmC hydrocarbon. Determine the concentration
value to calibration gas tolerances by chromatographic analysis of
total hydrocarbons plus impurities or by dynamic blending. Use nitrogen
as the predominant diluent with the balance oxygen.
(e) Fuel for the hydrocarbon flame ionization detector (HC-FID)
must be a blend of 402 percent hydrogen with the balance
being helium. The mixture shall contain less than one ppm equivalent
carbon response; 98 to 100 percent hydrogen fuel may be used with
advance approval of the Administrator.
(f) Hydrocarbon analyzer burner air. The concentration of oxygen
must be within one mole percent of the oxygen concentration of the
burner air used in the latest oxygen interference check (percent
O2I), see Sec. 91.316(d). If the difference in oxygen
concentration is greater than one mole percent, then the oxygen
interference must be checked and the analyzer adjusted if necessary, to
meet the percent O2I requirements. The burner air must contain
less than two ppmC hydrocarbon.
Sec. 91.313 Analyzers required.
(a) Analyzers. Analyze measured gases with the following
instruments:
(1) Carbon monoxide (CO) analysis. (i) The carbon monoxide analyzer
must be of the non-dispersive infrared (NDIR) absorption type.
(ii) The use of linearizing circuits is permitted.
(2) Carbon dioxide (CO2) analysis. (i) The carbon dioxide
analyzer must be of the non-dispersive infrared (NDIR) absorption type.
(ii) The use of linearizing circuits is permitted.
(3) Oxygen (O2) analysis. Oxygen (O2) analyzers may be of
the paramagnetic (PMD), zirconia (ZRDO) or electrochemical type (ECS).
(4) Hydrocarbon (HC) analysis. (i) For Raw Gas Sampling, the
hydrocarbon analyzer must be of the heated flame ionization (HFID)
type. For constant volume sampling, the hydrocarbon analyzer may be of
the flame ionization (FID) type or of the heated flame ionization
(HFID) type.
(ii) For the HFID system, if the temperature of the exhaust gas at
the sample probe is below 190 deg. C, the temperature of the valves,
pipe work, and so forth, must be controlled so as to maintain a wall
temperature of 190 deg. C 11 deg. C. If the temperature of
the exhaust gas at the sample probe is above 190 deg. C, the
temperature of the valves, pipe work, and so forth, must be controlled
so as to maintain a wall temperature greater than 180 deg. C.
(iii) For the HFID analyzer, the detector, oven, and sample-
handling components within the oven must be suitable for continuous
operation at temperatures to 200 deg. C. It must by capable of
maintaining temperature within 5.5 deg. C of the set
point.
(iv) Fuel and burner air must conform to the specifications in
Sec. 91.312.
(v) The percent of oxygen interference must be less than three
percent, as specified in Sec. 91.316(d).
(5) Oxides of nitrogen (NOX) analysis. (i) This analysis
device consists of the following items:
(A) A NO2 to NO converter. The NO2 to NO converter
efficiency must be at least 90 percent.
(B) An ice bath located after the NOX converter (optional).
(C) A chemiluminescent detector (CLD) or heated chemiluminescent
detector (HCLD).
(ii) The quench interference must be less than three percent as
measured in Sec. 91.325.
(b) Other gas analyzers yielding equivalent results may be used
with advance approval of the Administrator.
(c) The following requirements must be incorporated as indicated in
systems used for testing under this subpart.
(1) Carbon monoxide and carbon dioxide measurements must be made on
a dry basis (for raw exhaust measurement only). Specific requirements
for the means of drying the sample can be found in Sec. 91.313(e).
(2) Calibration or span gases for the NOX measurement system
must pass through the NO2 to NO converter.
(d) The electromagnetic compatibility (EMC) of the equipment must
be on a level as to minimize additional errors.
(e) Gas drying. Chemical dryers are not an acceptable method of
removing water from the sample. Water removal
[[Page 52119]]
by condensation is acceptable. If water is removed by condensation, the
sample gas temperature or sample dew point must be monitored either
within the water trap or downstream and its temperature must not exceed
7 deg. C. A water trap performing this function is an acceptable
method. Means other than condensation may be used only with prior
approval from the Administrator.
Sec. 91.314 Analyzer accuracy and specifications.
(a) Measurement accuracy--general. The analyzers must have a
measuring range which allows them to measure the concentrations of the
exhaust gas sample pollutants with the accuracies shown in Table 2 in
appendix A to this subpart.
(1) Precision. The precision of the analyzer must be, at worst,
one percent of full-scale concentration for each range
used. The precision is defined as 2.5 times the standard deviation(s)
of 10 repetitive responses to a given calibration or span gas.
(2) Noise. The analyzer peak-to-peak response to zero and
calibration or span gases over any 10-second period may not exceed two
percent of full-scale chart deflection on all ranges used.
(3) Zero drift. The analyzer zero-response drift during a one-hour
period must be less than two percent of full-scale chart deflection on
the lowest range used. The zero-response is defined as the mean
response including noise to a zero-gas during a 30-second time
interval.
(4) Span drift. The analyzer span drift during a one-hour period
must be less than two percent of full-scale chart deflection on the
lowest range used. The analyzer span is defined as the difference
between the span-response and the zero-response. The span-response is
defined as the mean response including noise to a span gas during a 30-
second time interval.
(b) Operating procedure for analyzers and sampling system. Follow
the start-up and operating instructions of the instrument manufacturer.
Adhere to the minimum requirements given in Sec. 91.316 to Sec. 91.325
and Sec. 91.409.
(c) Emission measurement accuracy--Bag sampling. (1) Good
engineering practice dictates that exhaust emission sample analyzer
readings below 15 percent of full scale chart deflection should
generally not be used.
(2) Some high resolution read-out systems, such as computers, data
loggers, and so forth, can provide sufficient accuracy and resolution
below 15 percent of full scale. Such systems may be used provided that
additional calibrations are made to ensure the accuracy of the
calibration curves. The following procedure for calibration below 15
percent of full scale may be used:
Note: If a gas divider is used, the gas divider must conform to
the accuracy requirements as follows: The use of precision blending
devices (gas dividers) to obtain the required calibration gas
concentrations is acceptable, provided that the blended gases are
accurate to within 1.5 percent of NIST gas standards or
other gas standards which have been approved by the Administrator.
This accuracy implies that primary gases used for blending must be
``named'' to an accuracy of at least 1 percent,
traceable to NIST or other approved gas standards.
(i) Span the full analyzer range using a top range calibration gas.
The span gases must be accurate to within 2 percent of
NIST gas standards or other gas standards which have been approved by
the Administrator.
(ii) Generate a calibration curve according to, and meeting the
requirements of the sections describing analyzer calibrations which are
found in Secs. 91.316, 91.317, 91.318, and 91.320 of this chapter.
(iii) Select a calibration gas (a span gas may be used for
calibrating the CO2 analyzer) with a concentration between the two
lowest non-zero gas divider increments. This gas must be ``named'' to
an accuracy of 2 percent of NIST gas standards, or other
standards approved by the Administrator.
(iv) Using the calibration curve fitted to the points generated in
paragraphs (c)(2) (i) and (ii) of this section, check the concentration
of the gas selected in paragraph (c)(2)(iii) of this section. The
concentration derived from the curve must be within 2.3
percent ( 2.8 percent for CO2 span gas) of the gas'
original named concentration.
(v) Provided the requirements of paragraph (c)(2)(iv) of this
section are met, use the gas divider with the gas selected in paragraph
(c)(2)(iii) of this section and determine the remainder of the
calibration points. Fit a calibration curve per Secs. 91.316, 91.317,
91.318, and 91.320 of this chapter for the entire analyzer range.
(d) Emission measurement accuracy--continuous sampling. Analyzers
used for continuous analysis must be operated such that the measured
concentration falls between 15 and 100 percent of full scale chart
deflection. Exceptions to these limits are:
(1) The analyzer's response may be less than 15 percent or more
than 100 percent of full scale if automatic range change circuitry is
used and the limits for range changes are between 15 and 100 percent of
full scale chart deflection;
(2) The analyzer's response may be less than 15 percent of full
scale if:
(i) Alternative in paragraph (c)(2) of this section is used to
ensure that the accuracy of the calibration curve is maintained below
15 percent; or
(ii) The full scale value of the range is 155 ppmC or less; or
(iii) The emissions from the engine are erratic and the integrated
chart deflection value for the cycle is greater than 15 percent of full
scale; or
(iv) The contribution of all data read below the 15 percent level
is less than 10 percent by mass of the final test results.
Sec. 91.315 Analyzer initial calibration.
(a) Warming-up time. Follow the warm-up time according to the
recommendations of the manufacturer. If not specified, a minimum of two
hours should be allowed for warming up the analyzers.
(b) NDIR and HFID analyzer. Tune and maintain the NDIR analyzer per
the instrument manufacturer recommendations. The combustion flame of
the HFID analyzer must be optimized in order to meet the specifications
in Sec. 91.316(b).
(c) Zero setting and calibration. Using purified synthetic air (or
nitrogen), set the CO, CO2, NOX and HC analyzers at zero.
Connect the appropriate calibrating gases to the analyzers and record
the values. The same gas flow rates shall be used as when sampling
exhaust.
(d) Rechecking of zero setting. Recheck the zero setting and, if
necessary, repeat the procedure described in paragraph (c) of this
section.
Sec. 91.316 Hydrocarbon analyzer calibration.
(a) Calibrate the FID and HFID hydrocarbon analyzer as described in
this section. Operate the HFID to a set point 5.5 deg.C
between 185 and 197 deg.C.
(b) Initial and periodic optimization of detector response. Prior
to introduction into service and at least annually thereafter, adjust
the FID and HFID hydrocarbon analyzer for optimum hydrocarbon response
as specified by this paragraph. Alternative methods yielding equivalent
results may be used, if approved in advance by the Administrator.
(1) Follow good engineering practices for initial instrument start-
up and basic operating adjustment using the appropriate fuel (see
Sec. 91.312) and purified synthetic air or zero-grade nitrogen.
(2) One of the following procedures is required for FID or HFID
optimization:
(i) The procedure outlined in Society of Automotive Engineers (SAE)
paper
[[Page 52120]]
No. 770141, ``Optimization of Flame Ionization Detector for
Determination of Hydrocarbons in Diluted Automobile Exhaust''; author,
Glenn D. Reschke. This procedure has been incorporated by reference.
See Sec. 91.6.
(ii) The HFID optimization procedures outlined in Sec. 86.331-79 of
this chapter.
(iii) Alternative procedures may be used if approved in advance by
the Administrator.
(3) After the optimum flow rates have been determined, they are
recorded for future reference.
(c) Initial and periodic calibration. Prior to introduction into
service and monthly thereafter, or within one month prior to the
certification test, calibrate the FID or HFID hydrocarbon analyzer on
all normally used instrument ranges, using the steps in this paragraph.
Use the same flow rate and pressures as when analyzing samples.
Introduce calibration gases directly at the analyzer. An optional
method for dilute sampling described in Sec. 86.1310(b)(3)(i) of this
chapter may be used.
(1) Adjust analyzer to optimize performance.
(2) Zero the hydrocarbon analyzer with purified synthetic air or
zero-grade nitrogen.
(3) Calibrate on each used operating range with calibration gases
having nominal concentrations between 10 and 90 percent of that range.
A minimum of six evenly spaced points covering at least 80 percent of
the 10 to 90 percent range (64 percent) is required (see following
table).
------------------------------------------------------------------------
Example calibration points (percent) Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70................. No, range covered is 50?
percent, not 64 percent.
20, 30, 40, 50, 60, 70, 80, 90......... Yes.
FR Doc. 96-23063 Control of Air Pollution; Final Rule for New Gasoline Spark- Ignition Marine Engines; Exemptions for New Nonroad Compression- Ignition Engines at or Above 37 Kilowatts and New Nonroad Spark- Ignition Engines at or Below 19 Kilowatts
10, 25, 40, 55, 70, 85................. Yes
10, 30, 50, 70, 90..................... No, though equally spaced and
entire range covered, a
minimum of six points is
needed
------------------------------------------------------------------------
(4) For each range calibrated, if the deviation from a least-
squares best-fit straight line is two percent or less of the value at
each data point, calculate concentration values by use of a single
calibration factor for that range. If the deviation exceeds two percent
at any point, use the best-fit non-linear equation which represents the
data to within two percent of each test point to determine
concentration.
(d) Oxygen interference optimization. Choose a range where the
oxygen interference check gases will fall in the upper 50 percent.
Conduct the test, as outlined in this paragraph, with the oven
temperature set as required by the instrument manufacturer. Oxygen
interference check gas specifications are found in Sec. 91.312(d).
(1) Zero the analyzer.
(2) Span the analyzer with the 21 percent oxygen blend.
(3) Recheck zero response. If it has changed more than 0.5 percent
of full scale repeat paragraphs (d)(1) and (d)(2) of this section to
correct the problem.
(4) Introduce the five percent and 10 percent oxygen interference
check gases.
(5) Recheck the zero response. If it has changed more than
one percent of full scale, repeat the test.
(6) Calculate the percent of oxygen interference (designated as
percent O2I) for each mixture in paragraph (d)(4) of this section
according to the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.008
Where:
A=hydrocarbon concentration (ppmC) of the span gas used in paragraph
(d)(2) of this section.
B=hydrocarbon concentration (ppmC) of the oxygen interference check
gases used in paragraph (d)(4) of this section.
(7) The percent of oxygen interference (designated as percent
O2I) must be less than plus-minus three percent for all
required oxygen interference check gases prior to testing.
(8) If the oxygen interference is greater than the specifications,
incrementally adjust the air flow above and below the manufacturer's
specifications, repeating paragraphs (d)(1) through (d)(7) of this
section for each flow.
(9) If the oxygen interference is greater than the specification
after adjusting the air flow, vary the fuel flow and thereafter the
sample flow, repeating paragraphs (d)(1) through (d)(7) of this section
for each new setting.
(10) If the oxygen interference is still greater than the
specifications, repair or replace the analyzer, FID fuel, or burner air
prior to testing. Repeat this section with the repaired or replaced
equipment or gases.
Sec. 91.317 Carbon monoxide analyzer calibration.
(a) Calibrate the NDIR carbon monoxide analyzer described in this
section.
(b) Initial and periodic interference check. Prior to its
introduction into service and annually thereafter, check the NDIR
carbon monoxide analyzer for response to water vapor and CO2:
(1) Follow good engineering practices for instrument start-up and
operation. Adjust the analyzer to optimize performance on the most
sensitive range to be used.
(2) Zero the carbon monoxide analyzer with either purified
synthetic air or zero-grade nitrogen.
(3) Bubble a mixture of three percent CO2 in N2 through
water at room temperature and record analyzer response.
(4) An analyzer response of more than one percent of full scale for
ranges
[[Page 52121]]
above 300 ppm full scale or more than three ppm on ranges below 300 ppm
full scale requires corrective action. (Use of conditioning columns is
one form of corrective action which may be taken.)
(c) Initial and periodic calibration. Calibrate the NDIR carbon
monoxide analyzer prior to its introduction into service and monthly
thereafter.
(1) Adjust the analyzer to optimize performance.
(2) Zero the carbon monoxide analyzer with either purified
synthetic air or zero-grade nitrogen.
(3) Calibrate on each used operating range with carbon monoxide-in-
N2 calibration gases having nominal concentrations between 10 and
90 percent of that range. A minimum of six evenly spaced points
covering at least 80 percent of the 10 to 90 range (64 percent) is
required (see following table).
------------------------------------------------------------------------
Example calibration points (percent) Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70................. No, range covered is 50
percent, not 64 percent.
20, 30, 40, 50, 60, 70, 80, 90......... Yes.
10, 25, 40, 55, 70, 85................. Yes.
10, 30, 50, 70, 90..................... No, though equally spaced and
entire range covered, a
minimum of six points is
needed.
------------------------------------------------------------------------
(4) Additional calibration points may be generated. For each range
calibrated, if the deviation from a least-squares best-fit straight
line is two percent or less of the value at each data point,
concentration values may be calculated by use of a single calibration
factor for that range. If the deviation exceeds two percent at any
point, use the best-fit non-linear equation which represents the data
to within two percent of each test point to determine concentration.
Sec. 91.318 Oxides of nitrogen analyzer calibration.
(a) Calibrate the chemiluminescent oxides of nitrogen analyzer as
described in this section.
(b) Initial and periodic interference. Prior to its introduction
into service, and monthly thereafter, check the chemiluminescent oxides
of nitrogen analyzer for NO2 to NO converter efficiency. Figure 2
in appendix B of this subpart is a reference for the following
paragraphs:
(1) Follow good engineering practices for instrument start-up and
operation. Adjust the analyzer to optimize performance.
(2) Zero the oxides of nitrogen analyzer with purified synthetic
air or zero-grade nitrogen.
(3) Connect the outlet of the NOX generator to the sample
inlet of the oxides of nitrogen analyzer which has been set to the most
common operating range.
(4) Introduce into the NOX generator analyzer-system an NO-in-
nitrogen (N2) mixture with an NO concentration equal to
approximately 80 percent of the most common operating range. The
NO2 content of the gas mixture must be less than 5 percent of the
NO concentration.
(5) With the oxides of nitrogen analyzer in the NO mode, record the
concentration of NO indicated by the analyzer.
(6) Turn on the NOX generator O2 (or air) supply and
adjust the O2 (or air) flow rate so that the NO indicated by the
analyzer is about 10 percent less than indicated in paragraph (b)(5) of
this section. Record the concentration of NO in this NO+O2 mixture
as value ``c.''
(7) Switch the NOX generator to the generation mode and adjust
the generation rate so that the NO measured on the analyzer is 20
percent of that measured in paragraph (b)(5) of this section. There
must be at least 10 percent unreacted NO at this point. Record the
concentration of residual NO as value ``d.''
(8) Switch the oxides of nitrogen analyzer to the NOX mode and
measure total NOX. Record this value as ``a.''
(9) Switch off the NOX generator but maintain gas flow through
the system. The oxides of nitrogen analyzer will indicate the NOX
in the NO+O2 mixture. Record this value as ``b.''
(10) Turn off the NOX generator O2 (or air) supply. The
analyzer will now indicate the NOX in the original NO-in-N2
mixture. This value should be no more than 5 percent above the value
indicated in paragraph (b)(4) of this section.
(11) Calculate the efficiency of the NOX converter by
substituting the concentrations obtained into the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.009
Where:
a=concentration obtained in paragraph (b)(8) of this section,
b=concentration obtained in paragraph (b)(9) of this section,
c=concentration obtained in paragraph (b)(6) of this section,
d=concentration obtained in paragraph (b)(7) of this section.
If converter efficiency is not greater than 90 percent, corrective
action is required.
(c) Initial and periodic calibration. Prior to its introduction
into service, and monthly thereafter, calibrate the chemiluminescent
oxides of nitrogen analyzer on all normally used instrument ranges. Use
the same flow rate as when analyzing samples. Proceed as follows:
(1) Adjust analyzer to optimize performance.
(2) Zero the oxides of nitrogen analyzer with zero-grade air or
zero-grade nitrogen.
(3) Calibrate on each normally used operating range with NO-in-
N2 calibration gases with nominal concentrations between 10 and 90
percent of that range. A minimum of six evenly spaced points covering
at least 80 percent of the 10 to 90 percent range (64 percent) is
required (see following table).
------------------------------------------------------------------------
Example calibration points (percent) Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70................. No, range covered is 50
percent, not 64 percent.
20, 30, 40, 50, 60, 70, 80, 90......... Yes.
10, 25, 40, 55, 70, 85................. Yes.
10, 30, 50, 70, 90..................... No, though equally spaced and
entire range covered, a
minimum of six points is
needed.
------------------------------------------------------------------------
[[Page 52122]]
(4) Additional calibration points may be generated. For each range
calibrated, if the deviation from a least-squares best-fit straight
line is two percent or less of the value at each data point,
concentration values may be calculated by use of a single calibration
factor for that range. If the deviation exceeds two percent at any
point, use the best-fit non-linear equation which represents the data
to within two percent of each test point to determine concentration.
(d) The initial and periodic interference, system check, and
calibration test procedures specified in Sec. 86.332-79 of this chapter
may be used in lieu of the procedures specified in this section.
Sec. 91.319 NOX converter check.
(a) The efficiency of the converter used for the conversion of
NO2 to NO is tested as given in paragraphs (a)(1) through (a)(8)
of this section (see Figure 2 in appendix B to this subpart).
(1) Using the test setup as shown in Figure 2 in appendix B to this
subpart (see also Sec. 91.318 of this chapter) and the procedures
described in paragraphs (a)(2) through (a)(8) of this section, test the
efficiency of converters by means of an ozonator.
(2) Calibrate the HCLD in the most common operating range following
the manufacturer's specifications using zero and span gas (the NO
content of which must amount to about 80 percent of the operating range
and the NO2 concentration of the gas mixture less than five
percent of the NO concentration). The NOX analyzer must be in the
NO mode so that the span gas does not pass through the converter.
Record the indicated concentration.
(3) Calculate the efficiency of the NOX converter as described
in Sec. 91.318(b).
(4) Via a T-fitting, add oxygen continuously to the gas flow until
the concentration indicated is about 20 percent less than the indicated
calibration concentration given in paragraph (a)(2) of this section.
Record the indicated concentration as ``c''. The ozonator is kept
deactivated throughout the process.
(5) Activate the ozonator to generate enough ozone to bring the NO
concentration down to about 20 percent (minimum 10 percent) of the
calibration concentration given in paragraph (a)(2) of this section.
Record the indicated concentration as ``d''.
Note: If, with the analyzer in the most common range the
NOX converter cannot give a reduction from 80 percent to 20
percent, then use the highest range which will give the reduction.
(6) Switch the NO analyzer to the NOX mode, which means that
the gas mixture (consisting of NO, NO2, O2 and N2) now
passes through the converter. Record the indicated concentration as
``a''.
(7) Deactivate the ozonator. The mixture of gases described in
paragraph (a)(6) of this section passes through the converter into the
detector. Record the indicated concentration as ``b''.
(8) Switched to NO mode with the ozonator deactivated, the flow of
oxygen or synthetic air is also shut off. The NOX reading of the
analyzer may not deviate by more than five percent of the
theoretical value of the figure given in paragraph (a)(2) of this
section.
(b) The efficiency of the converter must be tested prior to each
calibration of the NOX analyzer.
(c) The efficiency of the converter may not be less than 90
percent.
Sec. 91.320 Carbon dioxide analyzer calibration.
(a) Prior to its introduction into service, and monthly thereafter,
or within one month prior to the certification test, calibrate the NDIR
carbon dioxide analyzer as follows:
(1) Follow good engineering practices for instrument start-up and
operation. Adjust the analyzer to optimize performance.
(2) Zero the carbon dioxide analyzer with either purified synthetic
air or zero-grade nitrogen.
(3) Calibrate on each normally used operating range with carbon
dioxide-in-N2 calibration or span gases having nominal
concentrations between 10 and 90 percent of that range. A minimum of
six evenly spaced points covering at least 80 percent of the 10 to 90
percent range (64 percent) is required (see following table).
------------------------------------------------------------------------
Example calibration points (percent) Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70................. No, range covered is 50
percent, not 64 percent.
20, 30, 40, 50, 60, 70, 80, 90......... Yes.
10, 25, 40, 55, 70, 85................. Yes.
10, 30, 50, 70, 90..................... No, though equally spaced and
entire range covered, a
minimum of six points is
needed.
------------------------------------------------------------------------
(4) Additional calibration points may be generated. For each range
calibrated, if the deviation from a least-squares best-fit straight
line is two percent or less of the value at each data point,
concentration values may be calculated by use of a single calibration
factor for that range. If the deviation exceeds two percent at any
point, use the best-fit non-linear equation which represents the data
to within two percent of each test point to determine concentration.
(b) The initial and periodic interference, system check, and
calibration test procedures specified in Secs. 86.316, 86.319, 86.320,
86.321, and 86.322 of this chapter may be used in lieu of the
procedures in this section.
Sec. 91.321 NDIR analyzer calibration.
(a) Detector optimization. If necessary, follow the manufacturer's
instructions for initial start-up and basic operating adjustments.
(b) Calibration curve. Develop a calibration curve for each range
used as follows:
(1) Zero the analyzer.
(2) Span the analyzer to give a response of approximately 90
percent of full-scale chart deflection.
(3) Recheck the zero response. If it has changed more than 0.5
percent of full scale, repeat the steps given in paragraphs (b)(1) and
(b)(2) of this section.
(4) Record the response of calibration gases having nominal
concentrations between 10 and 90 percent of full-scale concentration. A
minimum of six evenly spaced points covering at least 80 percent of the
10 to 90 percent range (64 percent) is required (see following table).
------------------------------------------------------------------------
Example calibration points (percent) Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70................. No, range covered is 50
percent, not 64 percent.
20, 30, 40, 50, 60, 70, 80, 90......... Yes.
[[Page 52123]]
10, 25, 40, 55, 70, 85................. Yes.
10, 30, 50, 70, 90..................... No, though equally spaced and
entire range covered, a
minimum of six points is
needed.
------------------------------------------------------------------------
(5) Generate a calibration curve. The calibration curve must be of
fourth order or less, have five or fewer coefficients, and be of the
form of equation (1) or (2). Include zero as a data point. Compensation
for known impurities in the zero gas can be made to the zero-data
point. The calibration curve must fit the data points within two
percent of point or one percent of full scale, whichever is less.
[GRAPHIC] [TIFF OMITTED] TR04OC96.010
y=concentration
x=chart deflection
(6) Option. A new calibration curve need not be generated if:
(i) A calibration curve conforming to paragraph (b)(5) of this
section exists;
(ii) The responses generated in paragraph (b)(4) of this section
are within one percent of full scale or two percent of point, whichever
is less, of the responses predicted by the calibration curve for the
gases used in paragraph (b)(4) of this section.
(7) If multiple range analyzers are used, the lowest range used
must meet the curve fit requirements below 15 percent of full scale.
(c) Linear calibration criteria. If any range is within two percent
of being linear, a linear calibration may be used. To determine if this
criterion is met:
(1) Perform a linear least-square regression on the data generated.
Use an equation of the form y=mx, where x is the actual chart
deflection and y is the concentration.
(2) Use the equation z=y/m to find the linear chart deflection
(designated as z) for each calibration gas concentration (designated as
y).
(3) Determine the linearity (designated as percent L) for each
calibration gas by:
[GRAPHIC] [TIFF OMITTED] TR04OC96.011
(4) The linearity criterion is met if the percent L is less than
two percent for each data point generated. For each
emission test, use a calibration curve of the form Y=mx. The slope
(designated as m) is defined for each range by the spanning process.
Sec. 91.322 Calibration of other equipment.
Calibrate other test equipment as often as required by the
manufacturer or as necessary according to good engineering practice.
Sec. 91.323 Analyzer bench checks.
(a) Prior to initial use and after major repairs, verify that each
analyzer complies with the specifications given in Table 2 in appendix
A to this subpart.
(b) If a stainless steel NO2 to NO converter is used,
condition all new or replacement converters. The conditioning consists
of either purging the converter with air for a minimum of four hours or
until the converter efficiency is greater than 90 percent. The
converter must be at operational temperature while purging. Do not use
this procedure prior to checking converter efficiency on in-use
converters.
Sec. 91.324 Analyzer leakage check.
(a) Vacuum side leak check. (1) Check any location within the
analysis system where a vacuum leak could affect the test results.
(2) The maximum allowable leakage rate on the vacuum side is 0.5
percent of the in-use flow rate for the portion of the system being
checked. The analyzer flows and bypass flows may be used to estimate
the in-use flow rates.
(3) The sample probe and the connection between the sample probe
and valve V2 (see Figure 1 in appendix B of this subpart) may be
excluded from the leak check.
(b) Pressure side leak check. Substantial leaks of the sample on
the pressure side of the system may impact sample integrity if the
leaks are of sufficient magnitude. As a safety precaution, it is good
engineering practice to perform periodic pressure side leak checks on
the sampling system.
Sec. 91.325 Analyzer interference checks.
(a) Gases present in the exhaust other than the one being analyzed
can interfere with the reading in several ways. Positive interference
occurs in NDIR and PMD instruments when the interfering gas gives the
same effect as the gas being measured, but to a lesser degree. Negative
interference occurs in NDIR instruments by the interfering gas
broadening the absorption band of the measured gas, and in CLD
instruments by the interfering gas quenching the radiation. The
interference checks described in this section are to be made initially
and after any major repairs that could affect analyzer performance.
(b) CO analyzer water and CO2 interference checks. Bubble
through water at room temperature a CO2 span gas having a
concentration of between 80 percent and 100 percent inclusive of full
scale of the maximum operating range used during testing and record the
analyzer response. For dry measurements, this mixture may be introduced
into the sample system prior to the water trap. The analyzer response
must not be more than one percent of full scale for ranges equal to or
above 300 ppm or more than three ppm for ranges below 300 ppm.
(c) NOX analyzer quench check. The two gases of concern for
CLD (and HCLD) analyzers are CO2 and water vapor. Quench responses
to these two gases are proportional to their concentrations and,
therefore, require test techniques to determine quench at the highest
expected concentrations experienced during testing.
(1) NOX analyzer CO2 quench check. (i) Pass a CO2
span gas having a concentration of 80 percent to 100 percent of full
scale of the maximum operating range used during testing through the
CO2 NDIR analyzer and record the value as ``a.''
(ii) Dilute the CO2 span gas approximately 50 percent with NO
span gas and pass through the CO2 NDIR and CLD (or HCLD). Record
the CO2 and NO values as ``b'' and ``c'', respectively.
(iii) Shut off the CO2 and pass only the NO span gas through
the CLD (or HCLD). Record the NO value recorded as ``d.''
[[Page 52124]]
(iv) Calculate the percent CO2 quench as follows, which may
not exceed three percent:
[GRAPHIC] [TIFF OMITTED] TR04OC96.012
Where:
a=Undiluted CO2 concentration (percent)
b=Diluted CO2 concentration (percent)
c=Diluted NO concentration (ppm)
d=Undiluted NO concentration (ppm)
(2) NOX analyzer water quench check. (i) This check applies to
wet measurements only. Pass an NO span gas having a concentration of 80
percent to 100 percent of full scale of a normal operating range
through the CLD (or HCLD). Record the response as ``D.'' Bubble through
water at room temperature the NO span gas and pass it through the CLD
(or HCLD). Record the analyzers response as ``AR.'' Determine and
record the analyzers absolute operating pressure and the bubbler water
temperature. (It is important that the NO span gas contains minimal
NO2 concentration for this check. No allowance for absorption of
NO2 in water has been made in the following quench calculations.)
(ii) Calculations for water quench must consider dilution of the NO
span gas with water vapor and scaling of the water vapor concentration
of the mixture to that expected during testing. Determine the mixture's
saturated vapor pressure (designated as ``Pwb'') that corresponds to
the bubbler water temperature. Calculate the water concentration
(``Z1'', percent) in the mixture by the following equation:
Z1=100 x (Pwb/GP)
Where:
GP=the analyzer's standard operating pressure (pascals)
(iii) Calculate the expected dilute NO span gas and water vapor
mixture concentration (designated as ``D1'') by the following equation:
D1=D x (1Z1/100)
Sec. 91.326 Pre- and post-test analyzer calibration.
Calibrate the operating range of each analyzer used during the test
prior to and after each test in accordance with the following procedure
(A chronic need for parameter adjustment can indicate a need for
instrument maintenance.):
(a) Make the calibration using a zero gas and a span gas whose
nominal value is between 80 percent and 100 percent of full scale,
inclusive, of the measuring range.
(b) Use the same analyzer(s) flow rate and pressure as that used
during exhaust emission test sampling.
(c) Warm-up and stabilize the analyzer(s) before the calibration is
made.
(d) If necessary, clean and/or replace filter elements before
calibration is made.
(e) Calibrate analyzer(s) as follows:
(1) Zero the analyzer using the appropriate zero gas. Adjust
analyzer zero if necessary. Zero reading should be stable.
(2) Span the analyzer using the appropriate span gas for the range
being calibrated. Adjust the analyzer to the calibration set point if
necessary.
(3) Recheck zero and span set points.
(4) If the response of the zero gas or span gas differs more than
one percent of full scale, then repeat paragraphs (e)(1) through (3) of
this section.
Sec. 91.327 Sampling system requirements.
(a) Sample component surface temperature. For sampling systems
which use heated components, use engineering judgment to locate the
coolest portion of each component (pump, sample line section, filters,
and so forth) in the heated portion of the sampling system that has a
separate source of power or heating element. Monitor the temperature at
that location. If several components are within an oven, then only the
surface temperature of the component with the largest thermal mass and
the oven temperature need be measured.
(b) If water is removed by condensation, monitor the sample gas
temperature or sample dew point either within the water trap or
downstream. It may not exceed 7 deg.C.
Sec. 91.328 Measurement equipment accuracy/calibration frequency
table.
(a) The accuracy of measurements must be such that the maximum
tolerances shown in Table 2 in appendix A to this subpart are not
exceeded.
(b) Calibrate all equipment and analyzers according to the
frequencies shown in Table 2 in appendix A to this subpart.
(c) Prior to initial use and after major repairs, bench check each
analyzer (see Sec. 91.323).
(d) Calibrate as specified in Sec. 91.306 and Secs. 91.315 through
91.322.
(e) At least monthly, or after any maintenance which could alter
calibration, perform the following calibrations and checks.
(1) Leak check the vacuum side of the system (see Sec. 91.324(a)).
(2) Verify that the automatic data collection system (if used)
meets the requirements found in Table 2 in appendix A to this subpart.
(3) Check the fuel flow measurement instrument to insure that the
specifications in Table 2 in appendix A to this subpart are met.
(f) Verify that all NDIR analyzers meet the water rejection ratio
and the CO2 rejection ratio as specified in Sec. 91.325.
(g) Verify that the dynamometer test stand and power output
instrumentation meet the specifications in Table 2 in appendix A to
this subpart.
Sec. 91.329 Catalyst thermal stress test.
(a) Oven characteristics. The oven used for termally stressing the
test catalyst must be capable of maintaining a temperature of 500
deg.C 5 deg.C and 1000 deg.C10 deg.C.
(b) Evaluation gas composition. (1) A synthetic exhaust gas mixture
is used for evaluating the effect of thermal stress on catalyst
conversion efficiency.
(2) The synthetic exhaust gas mixture must have the following
composition:
------------------------------------------------------------------------
Volume Parts per
Constituent percent million
------------------------------------------------------------------------
Carbon Monoxide \1\........................... 1 ...........
Oxygen........................................ 1.3 ...........
Carbon Dioxide................................ 9 ...........
[[Page 52125]]
Water Vapor................................... 10 ...........
Sulfur Dioxide................................ ........... 20
Oxides of Nitrogen............................ ........... 280
Hydrogen...................................... ........... 3500
Hydrocarbon 1, 2.............................. ........... 4000
Nitrogen=Balance.............................. ........... ...........
------------------------------------------------------------------------
\1\ Alternatively, the carbon monoxide and hydrocarbon proportions of
the mixture may be changed to 1.2% and 4650 ppm, respectively (using
on of these alternative concentrations requires that the other be used
simultaneously).
\2\ Propylene/propane ratio=2/1.
Appendix A to Subpart D of Part 91--Tables
Table 1.--Symbols Used in Subparts D and E
----------------------------------------------------------------------------------------------------------------
Symbol Term Unit
----------------------------------------------------------------------------------------------------------------
AYM............................. Final weighted emission test g/kW-hr
results.
C3H8............................ Propane......................... ............................................
CB.............................. Concentration of emission in ppm
background sample.
CD.............................. Concentration of emission in ppm
dilute sample.
CO.............................. Carbon monoxide................. ............................................
CO2............................. Carbon dioxide.................. ............................................
conc............................ Concentration (ppm by volume)... ppm
DXX............................. Density of a specific emission g/m3
(XX).
DXX............................. Volume concentration of a percent
specific emission (XX) on a dry
basis.
DF.............................. Dilution factor of dilute
exhaust.
D1.............................. Water vapor mixture percent
concentration.
f............................... Engine specific parameter ............................................
considering atmospheric
conditions.
GAIRD........................... Intake air mass flow rate on dry kg/h
basis.
GFuel........................... Fuel mass flow rate............. kg/h
GP.............................. Analyzer standard operating Pa
pressure.
Gs.............................. Mass of carbon measured during a g
sampling period.
H............................... Absolute humidity (water content gr/kg
related to dry air).
H2.............................. Hydrogen........................ ............................................
i............................... Subscript denoting an individual ............................................
mode.
IT.............................. Indicated torque................ N-m
K............................... Wet to dry conversion factor.... ............................................
KH.............................. Humidity correction factor...... ............................................
KV.............................. Calibration coefficient for ............................................
critical flow venturi.
MXX............................. Molecular weight of a specific g/mole
molecule(XX).
mass............................ Pollutant mass flow............. g/h
MFUEL........................... Mass of fuel consumed during a g
sampling period.
N............................... Pump revolutions during test revs
period.
N2.............................. Nitrogen........................ ............................................
NO.............................. Nitric oxide.................... ............................................
NO2............................. Nitrogen dioxide................ ............................................
NOX............................. Oxides of nitrogen.............. ............................................
O2.............................. Oxygen.......................... ............................................
O2I............................. Oxygen concentration of the percent
burner air.
P............................... Absolute pressure............... kPa
PAUX............................ Declared total power absorbed by kW
auxiliaries fitted for the test.
PB.............................. Total barometric pressure kPa
(average of the pre-test and
post-test values).
Pdew............................ Test ambient saturation vapor kPa
pressure at the dew point.
Pe.............................. Absolute pump outlet pressure... kPa
PED............................. Pressure drop between the inlet kPa
and throat of metering venturi.
Pi.............................. Pi=PM,i + PAUX,i................ ............................................
PM.............................. Maximum power measured at the kW
test speed under test
conditions.
PP.............................. Absolute pump inlet pressure.... kPa
PPI............................. Inlet pressure depression of kPa
venturi or pump.
PPO............................. Pressure head at CVS pump outlet kPa
Ps.............................. Dry atmospheric pressure........ kPa
PV.............................. Absolute venturi inlet pressure. kPa
Pwb............................. Saturated vapor pressure........ Pa
QC.............................. Volumetric flow rate of dilute m3/hr
exhaust through CVS at STP.
QS.............................. Gas flow rate................... m3/min
RSTP............................ Ideal gas constant at STP....... m3/mole
R2.............................. Fuel carbon weight fraction..... g/g
STP............................. Standard temperature and ............................................
pressure.
t............................... Elapsed time for test period.... sec.
T............................... Absolute temperature at air deg.C
inlet.
Ta.............................. Ambient temperature............. deg.C
TEI............................. Air temperature in to metering deg.C
venturi or flowmeter.
TK.............................. Absolute temperature............ K
[[Page 52126]]
TP.............................. Absolute pump inlet temperature. deg.C
TPI............................. Air temperature at CVS pump deg.C
inlet.
TPO............................. Air temperature at CVS pump deg.C
outlet.
TV.............................. Absolute venturi inlet deg.C
temperature.
VO.............................. Pump flow....................... m3/rev
W............................... Average mass flow of emissions.. g/hr
WXX............................. Mass rate of specific emission g/hr
(XX).
WXX............................. Volume concentration in exhaust ppm, ppmC, %
of specific emission (XX) on
wet basis.
WF.............................. Weighing factor................. ............................................
Z1.............................. Water concentration............. percent
....................... Fuel specific factor
representing the hydrogen to
carbon ratio.
----------------------------------------------------------------------------------------------------------------
Table 2.--Measurement Accuracy Calibration Frequency
----------------------------------------------------------------------------------------------------------------
Permissible deviation from reading \1\
No. Item -------------------------------------------------- Calibration frequency
non-idle idle
----------------------------------------------------------------------------------------------------------------
1........... Engine speed........... 2%......... 2%......... Monthly.
2........... Torque................. 5%......... ....................... Monthly.
3........... Fuel consumption....... 1%......... 5%......... Monthly.
4........... Air consumption........ 2%......... 5%......... As required.
5........... Coolant temperature.... 2 deg. C... Same................... As required.
6........... Lubricant temperature.. 2 deg. C... Same................... As required.
7........... Exhaust back pressure.. 5%......... Same................... As required.
8........... Inlet depression....... 5%......... Same................... As required.
9........... Exhaust gas temperature 15 deg. C.. Same................... As required.
10.......... Air inlet temperature 2 deg. C... Same................... As required.
(combustion air).
11.......... Atmospheric pressure... 0.5%....... Same................... As required.
12.......... Humidity (combustion 3.0%....... Same................... As required.
air) (relative).
13.......... Fuel temperature....... 2 deg. C... Same................... As required.
14.......... Temperature with regard 2 deg. C... Same................... As required.
to dilution system.
15.......... Dilution air humidity.. 3% absolute Same................... As required.
16.......... HC analyzer............ 2% \2\..... Same................... Monthly.
17.......... CO analyzer............ 2% \2\..... Same................... Monthly.
18.......... NOX analyzer........... 2% \2\..... Same................... Monthly.
19.......... NOX converter check.... 90%.................... Same................... Monthly.
20.......... CO2 analyzer........... 2% \2\..... Same................... Monthly.
----------------------------------------------------------------------------------------------------------------
\1\ All accuracy requirements pertain to the final recorded value which is inclusive of the data acquisition
system.
\2\ If reading is under 100 ppm then the accuracy shall be 2 ppm.
Table 3.--Test Fuel Specifications
------------------------------------------------------------------------
Procedure
Item Property Tolerance (ASTM) \1\
------------------------------------------------------------------------
Sulfur, ppm max.................. 1000 ........... D 2622
Benzene, max. percent............ 1.5 ........... D 3606
RVP, psi......................... 8.6 0.6 D 323
Octane, R+M/2.................... 89.9 3.1 D 2699
D 2700
IBP, deg. C..................... 32.8 11.0 D 86
10% point, deg. C............... 53.3 5.5 D 86
50% point, deg. C............... 101.7 8.3 D 86
90% point, deg. C............... 160.0 11.1 D 86
End Point, max. deg. C.......... 212.8 ........... D 86
Phosphorus, g/l, max............. 0.02 ........... D 3231
Lead, g/l, max................... 0.02 ........... ...........
Manganese, g/l, max.............. 0.004 ........... ...........
Aromatics, max. percent.......... 35 ........... D 1319
Olefins, max. percent............ 10 ........... D 1319
Saturates, percent............... remain ........... D 1319
------------------------------------------------------------------------
\1\ All ASTM Procedures in this table have been incorporated by
reference. See Sec. 91.6.
BILLING CODE 6560-50-P
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Appendix B to Subpart D of Part 91--Figures
[GRAPHIC] [TIFF OMITTED] TR04OC96.013
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[GRAPHIC] [TIFF OMITTED] TR04OC96.014
BILLING CODE 6560-50-C
[[Page 52129]]
Subpart E--Gaseous Exhaust Test Procedures
Sec. 91.401 Scope; applicability.
(a) This subpart describes the procedures to follow in order to
perform exhaust emission tests on new marine gasoline-fueled spark-
ignition propulsion engines subject to the provisions of subpart A of
this part 91. Provisions specific to raw gas sampling are in
Secs. 91.414 through 91.419, provisions specific to constant volume
sampling are in Secs. 91.420 through 91.426. All other sections in this
subpart apply to both raw gas sampling and constant volume sampling
unless indicated otherwise.
(b) Requirements for emission test equipment and calibrating this
equipment are found in subpart D of this part.
Sec. 91.402 Definitions.
The definitions in Secs. 91.3, 91.102, and 91.302 apply to this
subpart.
Sec. 91.403 Symbols and abbreviations.
(a) The abbreviations in Sec. 91.5 apply to this subpart.
(b) The symbols in Table 1 in appendix A to subpart D apply to this
subpart.
Sec. 91.404 Test procedure overview.
(a) The test consists of prescribed sequences of engine operating
conditions to be conducted on an engine dynamometer or equivalent load
and speed measurement device. The exhaust gases generated during engine
operation are sampled either raw or dilute, and specific components are
analyzed through the analytical system.
(b) The tests are designed to determine the brake-specific
emissions of hydrocarbons, carbon monoxide, and oxides of nitrogen. The
test consists of one idle mode and four power modes with an exponential
relationship between torque and speed which span the typical operating
range of spark-ignition marine propulsion engines. These procedures
require the determination of the concentration of each pollutant, fuel
flow, and the power output during each mode. The measured values are
weighted and used to calculate the grams of each pollutant emitted per
brake kilowatt hour (g/kW-hr).
(c)(1) When an engine is tested for exhaust emissions the complete
engine is tested, with all emission control devices installed and
functioning.
(2) Additional accessories (for example, oil cooler, alternators,
and so forth) may be installed, but such accessory loading will be
considered parasitic in nature and observed power is used in the
emission calculation.
(d) All emission control systems installed on or incorporated in
the application must be functioning during all procedures in this
subpart. In cases of component malfunction or failure, no maintenance
is allowed without prior approval from the Administrator in accordance
with Sec. 91.118.
Sec. 91.405 Recorded information.
(a) Record the information described in this section for each test
where applicable.
(b) Test data; general. (1) Engine identification number.
(2) Engine emissions control system.
(3) Test operator(s).
(4) Number of hours of operation accumulated on the engine prior to
beginning the warm-up portion of the test (to the nearest tenth hour).
(5) Fuel identification.
(6) For two-stroke engines, fuel/oil mixture ratio.
(7) Date of most recent analytical assembly calibration.
(8) All pertinent instrument information such as tuning, gain,
serial numbers, detector number, and calibration curve numbers. As long
as this information is traceable, it may be summarized by system number
or analyzer identification numbers.
(c) Test data; pre-test. (1) Date and time of day.
(2) Test number.
(3) Barometric pressure; as an option, barometric pressure can be
measured as a modal measurement instead of or in addition to a pre- and
post-test measurement.
(4) Recorder chart or equivalent. Identify for each test segment
zero traces for each range used, and span traces for each range used.
(d) Test data; modal. (1) Recorder chart or equivalent. Identify
for each test mode the emission concentration traces and the associated
analyzer range(s).
(2) Observed engine torque.
(3) Observed engine rpm.
(4) Engine intake air flow, if applicable.
(5) Test cell temperature and humidity for each mode.
(6) For raw gas testing; fuel flow for each mode. Fuel flow
measurement is not required for dilute testing but is allowed. If the
fuel flow measurement is a volume measurement system, record the fuel
temperature in the measurement system for fuel density corrections to
the mass flow rate. If the fuel temperature is within 3 deg.C of the
calibration temperature, no density correction is required.
(7) Engine intake temperature and humidity for each mode, if
applicable.
(8) Exhaust sample line temperature, if applicable.
(e) Test data; post-test. (1) Recorder chart or equivalent.
Identify the hang-up check.
(2) Recorder chart or equivalent. Identify the zero traces for each
range used and the span traces for each range used.
(3) Total number of hours of operation accumulated on the engine
(to the nearest tenth hour).
(4) Barometric pressure, post-test segment.
Sec. 91.406 Engine parameters to be measured and recorded.
Measure or calculate, then record, the engine parameters in Table 1
in appendix A of this subpart.
Sec. 91.407 Engine inlet and exhaust systems.
(a) The marine engine manufacturer is liable for emission
compliance over the full range of restrictions that are specified by
the manufacturer for that particular engine.
(b) The air inlet filter system and exhaust muffler system
combination used on the test engine must be the systems expected to
yield the highest emission levels.
Sec. 91.408 Pre-test procedures.
(a) Engine service accumulation and stabilization procedure. Use
the service accumulation procedure determined by the manufacturer for
exhaust emission stabilizing of an engine, consistent with good
engineering practice (see Sec. 91.117).
(1) The manufacturer determines, for each engine family, the number
of hours at which the engine exhaust emission control system
combination is stabilized for emission testing. However, this
stabilization procedure may not exceed 12 hours. The manufacturer must
maintain, and provide to the Administrator upon request, a record of
the rationale used in making this determination. If the manufacturer
can document that, at some time prior to the full 12 hour service
accumulation period, the engine emissions are decreasing for the
remainder of the 12 hours, the service accumulation may be completed at
that time. The manufacturer may elect to accumulate 12 hours on each
test engine within an engine family without making this determination.
(2) During service accumulation, the fuel and lubricants specified
in Sec. 91.308 must be used.
(3) Engine maintenance during service accumulation is allowed only
in accordance with Sec. 91.117.
(b) Engine pre-test preparation. (1) Drain and charge the fuel
tank(s) with
[[Page 52130]]
the specified test fuel (see Sec. 91.308) to 50 percent of the tank's
nominal capacity. If an external fuel tank is used, the engine fuel
inlet system pressure must be typical of what the engine will see in
use.
(2) Operate the engine on the dynamometer measuring the fuel
consumption (fuel consumption required only for raw gas sampling
method) and torque before and after the emission sampling equipment is
installed, including the sample probe, using mode 1 from Table 2 in
appendix A of this subpart. The emission sampling equipment may not
significantly affect the operational characteristics of the engine
(typically, the results should agree within five percent).
(c) Analyzer pre-test procedures. (1) If necessary, warm up and
stabilize the analyzer(s) before calibrations are performed.
(2) Replace or clean the filter elements and then vacuum leak check
the system per Sec. 91.324(a). If necessary, allow the heated sample
line, filters, and pumps to reach operating temperature.
(3) Perform the following system checks:
(i) If necessary, check the sample-line temperature. Heated FID
sample line temperature must be maintained between 110 deg.C and 230
deg.C, a heated NOX sample line temperature must be maintained
between 60 deg.C and 230 deg.C.
(ii) Check that the system response time has been accounted for
prior to sample collection data recording.
(iii) A hang-up check is permitted.
(4) Check analyzer zero and span before and after each test at a
minimum. Further, check analyzer zero and span any time a range change
is made or at the maximum demonstrated time span for stability for each
analyzer used.
(d) Check system flow rates and pressures and reset if necessary.
Sec. 91.409 Engine dynamometer test run.
(a) Engine and dynamometer start-up.
(1) Only adjustments in accordance with Sec. 91.118 may be made to
the test engine prior to starting a test.
(2) If necessary, warm up the dynamometer as recommended by the
dynamometer manufacturer ore good engineering practice.
(3) At the manufacturer's option, the engine can be run with the
throttle in a fixed position or by using the engine's governor (if the
engine is manufactured with a governor). In either case, the engine
speed and load must meet the requirements specified in paragraph
(b)(12) of this section.
(b) Each test consists of the following:
(1) Record the general test data as specified in Sec. 91.405.
(2) Precondition the engine in the following manner;
(i) Operate the engine at idle for 2 to 3 minutes;
(ii) Operate the engine at a power greater than or equal to 50
percent power at the rated speed for 5 to 7 minutes;
(iii) Operate the engine at rated speed and maximum power for 25 to
30 minutes;
(iv) Option. For four-stroke engines, where appropriate, it is
permitted to precondition the engine at rated speed and maximum power
until the oil and water temperatures are stabilized. The temperatures
are defined as stabilized if they are maintained within 2 percent of
point for 2 minutes. The engine must be operated a minimum of 10
minutes for this option. This optional procedure may be substituted for
step in paragraphs (b)(2)(iii) of this section;
(v) Option. If the engine has been operating on service
accumulation for a minimum of 40 minutes, the service accumulation may
be substituted for steps in paragraphs (b)(2) (i) through (iii) of this
section.
(3) Record all pre-test data specified in Sec. 91.405(c).
(4) Start the test cycle (see Sec. 91.410) within 10 minutes of the
completion of the steps required by paragraph (b)(2) of this section.
(5) During the first mode calculate the torque corresponding to
71.6, 46.5, and 25.3 percent of the maximum observed torque for the
rated speed (see Table 2 in appendix A of this subpart).
(6) Once engine speed and load are set for a mode, run the engine
for a sufficient period of time to achieve thermal stability. At the
manufacturers option, determine and document the appropriate criterion
for thermal stability for each engine family.
(7) Record all modal data specified in Sec. 91.405(e) for a minimum
time period of the last two minutes of each mode. Longer averaging
periods are acceptable, but the data averaged must be from a continuous
time period. The duration of time during which this data is recorded is
referred to as the ``sampling period.'' The data collected during the
sampling period is used for modal emission calculations.
(8) Continuously record the analyzer's response to the exhaust gas
during the sampling period.
(9) Modes may be repeated.
(10) If a delay of more than one hour occurs between the end of one
mode and the beginning of another mode, the test is void and must be
restarted as described at paragraph (b)(1) of this section.
(11) The engine speed and load must be maintained within the
requirements of Sec. 91.410 during the sampling period for each mode.
If this requirement is not met, the mode is void and must be restarted.
(12) If at any time during a mode, the test equipment malfunctions
or the specifications in Sec. 91.410 can not be met, the test is void,
and must be aborted. Corrective action should be taken and the test
restarted.
(13) Fuel flow and air flow during the idle condition may be
determined just prior to or immediately following the dynamometer
sequence, if longer times are required for accurate measurements. If
the dilute sampling method (Constant Volume Sampling) is used, neither
fuel flow nor air flow measurements are required.
(c) Exhaust gas measurements. (1) Measure HC, CO, CO2, and
NOX concentration in the exhaust sample.
(2) Each analyzer range that may be used during a test segment must
have the zero and span responses recorded prior to the start of the
test. Only the range(s) used to measure the emissions during the test
is required to have its zero and span recorded after the completion of
the test. Depending on the stability of each individual analyzer, more
frequent zero checks or spans between modes may be necessary.
(3) It is permitted to change filter elements between test
segments.
(4) A leak check is permitted between modes.
(5) A hang-up check is permitted between modes (see Sec. 91.413).
(6) If, during the emission measurement portion of a mode, the
value of the gauges downstream of the NDIR analyzer(s) G3 or G4 (See
Figure 1 in appendix B of subpart D of this part) differs by more than
0.5 kPa, the mode is void.
Sec. 91.410 Engine test cycle.
(a) The 5-mode cycle specified in Table 2 in appendix A to this
subpart shall be followed in dynamometer operation tests of marine
engines.
(b) During each non-idle mode the specified speed and load shall be
held to within 50 rpm or two percent of point,
whichever is greater. During each idle mode the engine speed shall be
held within 75 rpm or five percent of the
manufacturers specified idle speed, whichever is greater. For direct
drive products (no neutral gear), it is acceptable to have an accessory
load on the engine during the idle mode provided that the engine speed
is within five percent of the manufacturers specified idle
speed and the accessory
[[Page 52131]]
load is representative of in use operation.
(c) If the operating conditions specified in paragraph (b) of this
section for modes 2, 3, 4, and 5 cannot be maintained, the
Administrator may authorize deviations from the specified load
conditions. Such deviations shall not exceed 10 percent of the maximum
torque at the test speed. The minimum deviations, above and below the
specified load, necessary for stable operation shall be determined by
the manufacturer and approved by the Administrator prior to the test
run.
(d) Do not include power generated during the idle mode (mode 5) in
the calculation of emissions results.
Sec. 91.411 Post-test analyzer procedures.
(a) Perform a hang-up check within 60 seconds of the completion of
the last mode in the test. Use the following procedure:
(1) Introduce a zero-grade gas or room air into the sample probe or
valve V2 (see Figure 1 in appendix B of subpart D of this part) to
check the ``hangup zero'' response. Simultaneously start a time
measurement.
(2) Select the lowest HC range used during the test.
(3) Within four minutes of beginning the time measurement in
paragraph (a)(1) of this section, the difference between the zero gas
response and the hang-up zero response shall not be greater than 5.0
percent of full scale or 10 ppmC whichever is greater.
(b) Begin the analyzer span checks within six minutes after the
completion of the last mode in the test. Record for each analyzer the
zero and span response for each range used during the preceding test or
test segment.
(c) If during the test, the filter element(s) were replaced or
cleaned, a vacuum check must be performed per Sec. 91.324(a)
immediately after the span checks. If the vacuum side leak check does
not meet the requirements of Sec. 91.324(a) the test is void.
(d) Read and record the post-test data specified in Sec. 91.405(e).
(e) For a valid test, the analyzer drift between the before-segment
and after-segment span checks for each analyzer must meet the following
requirements:
(1) The span drift (defined as the change in the difference between
the zero response and the span response) must not exceed two percent of
full-scale chart deflection for each range used.
(2) The zero response drift must not exceed two percent of full-
scale chart deflection for each range used above 155 ppm (or ppm C), or
three percent of full-scale chart deflection for each range below 155
ppm (or ppm C).
Sec. 91.412 Data logging.
(a) A computer or any other automatic data collection (ADC)
device(s) may be used as long as the system meets the requirements of
this subpart.
(b) Determine from the data collection records the analyzer
responses corresponding to the end of each mode.
(c) Record data at a minimum of one Hz (one time per second).
(d) Determine the final value for power by averaging the
individually calculated power points for each value of speed and torque
recorded during the sampling period. As an alternative, the final value
for power can be calculated from the average values for speed and
torque, collected during the sampling period.
(e) Determine the final value for CO2, CO, HC, and NOX
concentrations by averaging the concentration of each point taken
during the sample period for each mode.
Sec. 91.413 Exhaust sample procedure--gaseous components.
(a) Automatic data collection equipment requirements. The analyzer
response may be read by automatic data collection (ADC) equipment such
as computers, data loggers, etc. If ADC equipment is used the following
is required:
(1) For dilute grab (``bag'') analysis, the analyzer response must
be stable at greater than 99 percent of the final reading for the
dilute exhaust sample bag. A single value representing the average
chart deflection over a 10-second stabilized period shall be stored.
(2) For continuous analysis systems, a single value representing
the average integrated concentration over a cycle shall be stored.
Alternatively, the ADC may store the individual instantaneous values
collected during the measurement period.
(3) The chart deflections or average integrated concentrations
required in paragraphs (a)(1) and (a)(2) of this section may be stored
on long-term computer storage devices such as computer tapes, storage
discs, punch cards, and so forth, or they may be printed in a listing
for storage. In either case a chart recorder is not required and
records from a chart recorder, if they exist, need not be stored.
(4) If ADC equipment is used to interpret analyzer values, the ADC
equipment is subject to the calibration specifications of the analyzer
as if the ADC equipment is part of analyzer system.
(b) Data records from any one or a combination of analyzers may be
stored as chart recorder records.
(c) Grab sample analysis. For dilute grab sample analysis perform
the following sequence:
(1) Calibrate analyzers using the procedure described in
Sec. 91.326.
(2) Record the most recent zero and span response as the pre-
analysis value.
(3) Measure HC, CO, CO2, and NOX background
concentrations in the sample bag(s) and background sample bag(s) using
the same flow rates and pressures.
(4) Good engineering practice dictates that analyzers used for
continuous analysis should be operated such that the measured
concentration falls between 15 percent and 100 percent of full scale.
(5) A post-analysis zero and span check of each range must be
performed and the values recorded. The number of events that may occur
between the pre and post checks is not specified. However, the
difference between pre-analysis zero and span values (recorded in
paragraph (c)(5) or (c)(6) of this section) versus those recorded for
the post-analysis check may not exceed the zero drift limit or the span
drift limit of 2 percent of full scale chart deflection for any range
used. Otherwise the test is void.
(d) Continuous sample analysis. For continuous sample analysis,
perform the following sequence:
(1) Calibrate analyzers using the procedures described in
Sec. 91.326.
(2) Leak check portions of the sampling system that operate at
negative gauge pressures when sampling, and allow heated sample lines,
filters, pumps, and so forth to stabilize at operating temperature.
(3) Option: Determine the hang-up for the FID or HFID sampling
system:
(i) Zero the analyzer using zero air introduced at the analyzer
port.
(ii) Flow zero air through the overflow sampling system. Check the
analyzer response.
(iii) If the overflow zero response exceeds the analyzer zero
response by two percent or more of the FID or HFID full-scale
deflection, hang-up is indicated and corrective action must be taken
(see paragraph (e) of this section).
(iv) The complete system hang-up check specified in paragraph (f)
of this section is recommended as a periodic check.
(4) Obtain a stable zero reading.
(5) Good engineering practice dictates that analyzers used for
continuous analysis should be operated such that the measured
concentration falls between 15 percent and 100 percent of full scale.
[[Page 52132]]
(6) Record the most recent zero and span response as the pre-
analysis values.
(7) Collect background HC, CO, CO2, and NOX in a sample
bag (for dilute exhaust sampling only, see Sec. 91.422).
(8) Perform a post-analysis zero and span check for each range used
at the conditions specified in paragraph (d)(1) of this section. Record
these responses as the post-analysis values.
(9) Neither the zero drift nor the span drift between the pre-
analysis and post-analysis checks on any range used may exceed three
percent for HC, or two percent for NOX, CO, and CO2, of full
scale chart deflection, or the test is void. (If the HC drift is
greater than three percent of full-scale chart deflection, hydrocarbon
hang-up is likely.)
(10) Determine background levels of NOX, CO, or CO2 (for
dilute exhaust sampling only) by the grab (``bag'') technique outlined
in paragraph (c) of this section.
(e) Hydrocarbon hang-up. If HC hang-up is indicated, the following
sequence may be performed:
(1) Fill a clean sample bag with background air.
(2) Zero and span the HFID at the analyzer ports.
(3) Analyze the background air sample bag through the analyzer
ports.
(4) Analyze the background air through the entire sample probe
system.
(5) If the difference between the readings obtained is two ppm or
more, clean the sample probe and the sample line.
(6) Reassemble the sample system, heat to specified temperature,
and repeat the procedure in paragraphs (e)(1) through (e)(5) of this
section.
Sec. 91.414 Raw gaseous exhaust sampling and analytical system
description.
(a) Schematic drawing. An example of a sampling and analytical
system which may be used for testing under this subpart is shown in
Figure 4 in appendix B of this subpart. All components or parts of
components that are wetted by the sample or corrosive calibration gases
shall be either chemically cleaned stainless steel or inert material
(e.g., polytetrafluoroethylene resin). The use of ``gauge savers'' or
``protectors'' with nonreactive diaphragms to reduce dead volumes is
permitted.
(b) Sample probe. (1) The sample probe shall be a straight, closed
end, stainless steel, multi-hole probe. The inside diameter shall not
be greater than the inside diameter of the sample line + 0.03 cm. The
wall thickness of the probe shall not be greater than 0.10 cm. The
fitting that attaches the probe to the exhaust pipe shall be as small
as practical in order to minimize heat loss from the probe.
(2) The probe shall have a minimum of three holes. The spacing of
the radial planes for each hole in the probe must be such that they
cover approximately equal cross-sectional areas of the exhaust duct.
The angular spacing of the holes must be approximately equal. The
angular spacing of any two holes in one plane may not be 180 deg.
20 deg. (i.e., section C-C of Figure 1 in appendix B of
this subpart). The holes should be sized such that each has
approximately the same flow. If only three holes are used, they may not
all be in the same radial plane.
(3) The exhaust gas probe must be located in a position which
yields a well mixed, homogeneous sample of the engine exhaust. The
probe must extend radially through the exhaust duct prior to where the
exhaust mixes with the cooling water. The cooling water flow may be
rerouted if necessary to obtain an emission sample provided that the
modification has no significant effect on the performance or emissions
characteristics of the engine. The probe must pass through the
approximate center and must extend across at least 80 percent of the
diameter of the duct. The exact position of the probe may vary from
engine family to engine family.
(c) Sample transfer line. (1) The maximum inside diameter of the
sample line shall not exceed 1.32 cm.
(2) If valve V2 in Figure 1 of appendix B of Subpart D of this part
is used, the sample probe must connect directly to valve V2 in Figure 1
of appendix B of subpart D of this part. The location of optional valve
V2 may not be greater than 1.22 m from the exhaust duct.
(3) The location of optional valve V16 in Figure 1 of appendix B of
subpart D of this part may not be greater than 61 cm from the sample
pump. The leakage rate for this section on the pressure side of the
sample pump may not exceed the leakage rate specification for the
vacuum side of the pump.
(d) Venting. All vents including analyzer vents, bypass flow, and
pressure relief vents of regulators should be vented in such a manner
to avoid enda
FR Doc. 96-23063 Control of Air Pollution; Final Rule for New Gasoline Spark- Ignition Marine Engines; Exemptions for New Nonroad Compression- Ignition Engines at or Above 37 Kilowatts and New Nonroad Spark- Ignition Engines at or Below 19 Kilowatts
ngering personnel in the immediate area.
(e) Any variation from the specifications in this subpart including
performance specifications and emission detection methods may be used
only with prior approval by the Administrator.
(f) Additional components, such as instruments, valves, solenoids,
pumps, switches, and so forth, may be employed to provide additional
information and coordinate the functions of the component systems.
(g) The following requirements must be incorporated in each system
used for raw testing under this subpart.
(1) Take the sample for all components with one sample probe and
split it internally to the different analyzers.
(2) Heat the sample transport system from the engine exhaust pipe
to the HC analyzer for the raw gas sampling method as indicated in
Figure 1 in appendix B of subpart D of this part. The NOX analyzer
for the raw gas sampling method may be heated as indicated in Figure 1
in appendix B of subpart D of this part. The HC analyzer and the
NOX analyzer for the dilute sampling method may be heated as
indicated in Figure 1 in appendix B of subpart D of this part.
Sec. 91.415 Raw gaseous sampling procedures.
Fit all heated sampling lines with a heated filter to extract solid
particles from the flow of gas required for analysis. The sample line
for HC measurement must be heated. The sample line for CO, CO2,
and NOX may be heated or unheated.
Sec. 91.416 Intake air flow measurement specifications.
(a) If used, the engine intake air flow measurement method used
must have a range large enough to accurately measure the air flow over
the engine operating range during the test. Overall measurement
accuracy must be two percent of full-scale value of the
measurement device for all modes except the idle mode. For the idle
mode, the measurement accuracy shall be plus-minus five percent or
less of the full-scale value. The Administrator must be advised of the
method used prior to testing.
(b) When an engine system incorporates devices that affect the air
flow measurement (such as air bleeds, air injection, pulsed air, and so
forth) that result in understated exhaust emission results, make
corrections to the exhaust emission results to account for such
effects.
Sec. 91.417 Fuel flow measurement specifications.
(a) Fuel flow measurement is required only for raw testing but is
allowed for dilute testing.
(b) The fuel flow rate measurement instrument must have a minimum
accuracy of two percent of full-scale flow rate for each
measurement range used.
[[Page 52133]]
Sec. 91.418 Data evaluation for gaseous emissions.
For the evaluation of the gaseous emissions recording, record the
last two minutes of each mode and determine the average values for HC,
CO, CO2, and NOX during each mode from the average
concentration readings determined from the corresponding calibration
data.
Sec. 91.419 Raw emission sampling calculations.
(a) Derive the final test results through the steps described in
this section.
(b) Air and fuel flow method. If both air and fuel flow mass rates
are measured, the following equations are used to determine the
weighted emission values for the test engine:
[GRAPHIC] [TIFF OMITTED] TR04OC96.015
Where:
WHC = Mass rate of HC in exhaust [g/hr],
GAIRD = Intake air mass flow rate on dry basis [g/hr],
GFUEL = Fuel mass flow rate [g/hr],
MHCexh = Molecular weight of hydrocarbons in the exhaust; see the
following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.016
Where:
=Hydrocarbon/carbon atomic ratio of the fuel.
Mexh=Molecular weight of the total exhaust; see the following
equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.017
Where:
WHC = HC volume concentration in exhaust, ppmC wet
WCO = CO percent concentration in the exhaust, wet
DCO = CO percent concentration in the exhaust, dry
WCO2 = CO2 percent concentration in the exhaust, wet
DCO2 = CO2 percent concentration in the exhaust, dry
WNOX = NO volume concentration in exhaust, ppm wet
WH2 = H2 percent concentration in exhaust, wet
K = correction factor to be used when converting dry measurements to a
wet basis. Therefore, wet concentration = dry concentration x K,
where K is:
[GRAPHIC] [TIFF OMITTED] TR04OC96.018
DH2 = H2 percent concentration in exhaust, dry, calculated
from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.019
WCO = Mass rate of CO in exhaust, [g/hr]
MCO = Molecular weight of CO = 28.01
WNOx = Mass rate of NOX in exhaust, [g/hr]
MNO2 = Molecular weight of NO2 = 46.01
KH = Factor for correcting the effects of humidity on NO2
formation for four-stroke gasoline engines; see the equation below:
[GRAPHIC] [TIFF OMITTED] TR04OC96.020
Where:
H = specific humidity of the intake air in grams of moisture per
kilogram of dry air.
For two-stroke gasoline engines, KH should be set to 1.
(c) Fuel flow method. The following equations are to be used when
fuel flow is selected as the basis for mass emission calculations using
the raw gas method.
[[Page 52134]]
[GRAPHIC] [TIFF OMITTED] TR04OC96.021
Where:
WHC = Mass rate of HC in exhaust, [g/hr]
MF = Molecular weight of test fuel; see following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.022
GFUEL = Fuel mass flow rate, [g/hr]
TC = Total carbon; see following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.023
WHC = HC volume concentration in exhaust, ppmC wet
WCO = CO percent concentration in the exhaust, wet
DCO = CO percent concentration in the exhaust, dry
WCO2 = CO2 percent concentration in the exhaust, wet
DCO2 = CO2 percent concentration in the exhaust, dry
WNOx = NO volume concentration in exhaust, ppm wet
WH2 = H2 percent concentration in exhaust, wet
K = correction factor to be used when converting dry measurements to a
wet basis. Therefore, wet concentration = dry concentration x K,
where K is:
[GRAPHIC] [TIFF OMITTED] TR04OC96.024
DH2 = H2 percent concentration in exhaust, dry, calculated
from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.025
WCO = Mass rate of CO in exhaust, [g/hr]
MCO = Molecular weight of CO = 28.01
WNOx = Mass rate of NOX in exhaust, [g/hr]
MNO2 = Molecular weight of NO2 = 46.01
KH = Factor for correcting the effects of humidity on NO2
formation for four-stroke gasoline engines; see the equation below:
[GRAPHIC] [TIFF OMITTED] TR04OC96.026
Where:
H = specific humidity of the intake air in grams of moisture per
kilogram of dry air.
For two-stroke gasoline engines, KH should be set to 1.
(d) The final reported emission test results must be computed by
using the following formula for each individual gas component:
[GRAPHIC] [TIFF OMITTED] TR04OC96.027
Where:
Ywm = Weighted mass emission level (HC, CO, NOx) for a test
[g/kW-hr].
Wi = Average mass flow rate (WHC, WCO, WNOx) of an
emission from the test engine during mode i, [g/hr].
fi = Weighting factors for each mode according to Sec. 91.410(a)
Pi = Average power measured during mode i, [kW], calculated
according to the formula given in Sec. 91.423(b). Power for the idle
mode shall always be zero for this calculation.
(e) The final reported weighted brake-specific fuel consumption
(WBSFC) shall be computed by use of the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.028
Where:
WBSFC = Weighted brake-specific fuel consumption in grams of fuel per
kilowatt-hour (g/kW-hr).
Fi = Fuel mass flow rate of the engine during mode i, [g/hr].
fi = Weighting factors for each mode according to Sec. 91.410(a)
Pi = Average power measured during mode i, [kW], calculated
according to the formula given in Sec. 91.423(b). Power for the idle
mode shall always be zero for this calculation.
Sec. 91.420 CVS concept of exhaust gas sampling system.
(a) A dilute exhaust sampling system is designed to directly
measure the true mass of emissions in engine exhaust without the
necessity of measuring either fuel flow or intake air flow. This is
accomplished by diluting the exhaust produced by an engine under test
with ambient background air and measuring the total diluted exhaust
flow rate and the concentration of emissions within the dilute flow.
Total mass flow of an emission is then easily calculated.
(b) A constant volume sampler (CVS) is typically used to control
the total amount of dilute flow through the system. As the name
implies, a CVS restricts flow to a known value dependent only on the
dilute exhaust temperature and pressure.
(c) For the testing described in this subpart, a CVS must consist
of: A mixing tunnel into which the engine exhaust and dilutant
(background) air are dumped; a dilute exhaust flow metering system; a
dilute exhaust sample port; a background sample port; a dilute exhaust
sampling system; and a background sampling system.
(1) Mixing tunnel. The mixing tunnel must be constructed such that
complete mixing of the engine exhaust and background air is assured
prior to the sampling probe.
(2) Exhaust flow metering system. A dilute exhaust flow metering
system must be used to control the total flow rate of the dilute engine
exhaust as described in Sec. 91.421.
(3) Exhaust sample port. A dilute exhaust sample port must be
located in or downstream of the mixing tunnel at a point where complete
mixing of the engine exhaust and background air is assured.
(4) Background sample port. A dilute background sample port must be
located in the stream of background air before it is mixed with the
engine exhaust. The
[[Page 52135]]
background probe must draw a representative sample of the background
air during each sampling mode.
(5) Exhaust sampling system. The dilute exhaust sampling system
controls the flow of samples from the mixing tunnel to the analyzer
system. This could be either a continuous sampling system or grab (bag)
sampling system. If a critical flow venturi (CFV) is used on the dilute
exhaust sample probe, this system must assure that the sample CFV is in
choke flow during testing. If no CFV is used, this system must assure a
constant volumetric flow rate through the dilute exhaust sample probe
or must incorporate electronic flow compensation.
(6) Background sampling system. The background sampling system
controls the flow of samples from the background air supply to the
analyzer system. This could be either a continuous sampling system or
grab (bag) sampling system. This system must assure a constant
volumetric flow rate through the background sample probe.
Sec. 91.421 Dilute gaseous exhaust sampling and analytical system
description.
(a) General. The exhaust gas sampling system described in this
section is designed to measure the true mass emissions of engine
exhaust. This system utilizes the Constant volume Sampling (CVS)
concept (described in Sec. 91.420) of measuring mass emissions of HC,
NOx, CO, and CO2. Grab sampling for individual modes is an
acceptable method of dilute testing for all constituents, HC, NOx,
CO, and CO2. Continuous dilute sampling is not required for any of
the exhaust constituents, but is allowable for all. Heated sampling is
not required for any of the constituents, but is allowable for HC and
NOx. The mass of gaseous emissions is determined from the sample
concentration and total flow over the test period. As an option, the
measurement of total fuel mass consumed over a cycle may be substituted
for the exhaust measurement of CO2. General requirements are as
follows:
(1) This sampling system requires the use of a Positive
Displacement Pump--Constant Volume Sampler (PDP-CVS) system with a heat
exchanger, or a Critical Flow Venturi--Constant Volume Sampler (CFV-
CVS) system with CVS sample probes and/or a heat exchanger or
electronic flow compensation. Figure 2 in appendix B of this subpart is
a schematic drawing of the PDP-CVS system. Figure 3 in appendix B of
this subpart is a schematic drawing of the CFV-CVS system.
(2) The HC analytical system requires:
(i) Grab sampling (see Sec. 91.420, and Figure 2 or Figure 3 in
appendix B of this subpart) and analytical capabilities (see
Sec. 91.423, and Figure 4 in appendix B of this subpart), or
(ii) Continuously integrated measurement of diluted HC meeting the
minimum requirements and technical specifications contained in
paragraph (b)(2) of this section.
(iii) The dilute HC analytical system for marine spark-ignition
engines does not require a heated flame ionization detector (HFID).
(iv) If used, the HFID sample must be taken directly from the
diluted exhaust stream through a heated probe and integrated
continuously over the test cycle.
(v) The heated probe must be located in the sampling system far
enough downstream of the mixing area to ensure a uniform sample
distribution across the CVS duct at the sampling zone.
(3) The CO and CO2 analytical system requires:
(i) Grab sampling (see Sec. 91.420, and Figure 2 or Figure 3 in
appendix B of this subpart) and analytical capabilities (see
Sec. 91.423, and Figure 4 in appendix B of this subpart), or
(ii) Continuously integrated measurement of diluted CO and CO2
meeting the minimum requirements and technical specifications contained
in paragraph (b)(4) of this section.
(4) The NOX analytical system requires:
(i) Grab sampling (see Sec. 91.420, and Figure 2 or Figure 3 in
appendix B of this subpart) and analytical capabilities (see
Sec. 91.423, and Figure 4 in appendix B of this subpart), or
(ii) A continuously integrated measurement of diluted NOX
meeting the minimum requirements and technical specifications contained
in paragraph (b)(4) of this section.
(5) Since various configurations can produce equivalent results,
exact conformance with these drawings is not required. Additional
components such as instruments, valves, solenoids, pumps, and switches
may be used to provide additional information and coordinate the
functions of the component systems. Other components, such as snubbers,
which are not needed to maintain accuracy on some systems, may be
excluded if their exclusion is based upon good engineering judgment.
(6) Other sampling and/or analytical systems may be used if shown
to yield equivalent results and if approved in advance by the
Administrator.
(b) Component description. The components necessary for exhaust
sampling must meet the following requirements:
(1) Exhaust dilution system. The PDP-CVS must conform to all of the
requirements listed for the exhaust gas PDP-CVS in Sec. 91.420 of this
chapter. The CFV-CVS must conform to all of the requirements listed for
the exhaust gas CFV-CVS in Sec. 91.420. In addition, the CVS must
conform to the following requirements:
(i) The flow capacity of the CVS must be sufficient to maintain the
diluted exhaust stream in the dilution system at a temperature of 190
deg.C or less at the sampling zone for hydrocarbon measurement and as
required to prevent condensation at any point in the dilution system.
Gaseous emission samples may be taken directly from this sampling
point.
(ii) For the CFV-CVS, either a heat exchanger or electronic flow
compensation is required (see Figure 3 in appendix B of this subpart).
(iii) For the CFV-CVS when a heat exchanger is used, the gas
mixture temperature, measured at a point immediately ahead of the
critical flow venturi, must be within 11 deg.C of the
average operating temperature observed during the test with the
simultaneous requirement that condensation does not occur. The
temperature measuring system (sensors and readout) must have an
accuracy and precision of 2 deg.C. For systems utilizing a
flow compensator to maintain proportional flow, the requirement for
maintaining constant temperature is not necessary.
(2) Continuous HC measurement system. (i) The continuous HC sample
system (as shown in Figure 2 or 3 in appendix B of this subpart) uses
an ``overflow'' zero and span system. In this type of system, excess
zero or span gas spills out of the probe when zero and span checks of
the analyzer are made.
(ii) No other analyzers may draw a sample from the continuous HC
sample probe, line, or system, unless a common sample pump is used for
all analyzers and the sample line system design reflects good
engineering practice.
(iii) The overflow gas flow rates into the sample line must be at
least 105 percent of the sample system flow rate.
(iv) The overflow gases must enter the sample line as close as
practical to the outside surface of the CVS duct or dilution system.
(v) The continuous HC sampling system consists of a probe (which
for a HFID analyzer must raise the sample to the specified temperature)
and, where used, a sample transfer system (which
[[Page 52136]]
for a HFID must maintain the specified temperature). The HFID
continuous hydrocarbon sampling system (exclusive of the probe) must:
(A) Maintain a wall temperature of 190 deg. C 11 deg.
C as measured at every separately controlled heated component (that is,
filters, heated line sections), using permanent thermocouples located
at each of the separate components.
(B) Have a wall temperature of 190 deg. C 11 deg. C
over its entire length. The temperature of the system is demonstrated
by profiling the thermal characteristics of the system where possible
at initial installation and after any major maintenance performed on
the system. The profiling is to be accomplished using the insertion
thermocouple probing technique. The system temperature must be
monitored continuously during testing at the locations and temperature
described in Sec. 91.421(b)(2).
(C) Maintain a gas temperature of 190 deg. C 11 deg. C
immediately before the heated filter and HFID. Determine these gas
temperatures by a temperature sensor located immediately upstream of
each component.
(vi) The continuous hydrocarbon sampling probe:
(A) Is defined as the first 25.4 to 76.2 cm of the continuous
hydrocarbon sampling system.
(B) Has a 0.483 cm minimum inside diameter.
(C) Is installed in the dilution system at a point where the
dilution air and exhaust are well mixed and provide a homogenous
mixture.
(D) Is sufficiently distant (radially) from other probes and the
system wall so as to be free from the influence of any wakes or eddies.
(E) For a continuous HFID sample probe, the probe must increase the
gas stream temperature to 190 deg. C 11 deg. C at the exit
of the probe. Demonstrate the ability of the probe to accomplish this
using the insertion thermocouple technique at initial installation and
after any major maintenance. Demonstrate compliance with the
temperature specification by continuously recording during each test
the temperature of either the gas stream or the wall of the sample
probe at its terminus.
(vii) The response time of the continuous measurement system must
be taken into account when logging test data.
(3) Sample mixing. (i) configure the dilution system to ensure a
well mixed, homogeneous sample prior to the sampling probe(s).
(ii) Make the temperature of the diluted exhaust stream inside the
dilution system sufficient to prevent water condensation.
(iii) Direct the engine exhaust downstream at the point where it is
introduced into the dilution system.
(4) Continuously integrated NOX, CO, and CO2 measurement
systems. (i) Sample probe requirements:
(A) The sample probe for continuously integrated NOX, CO, and
CO2 must be in the same plane as the continuous HC probe, but
sufficiently distant (radially) from other probes and the tunnel wall
so as to be free from the influences of any wakes or eddies.
(B) The sample probe for continuously integrated NOX, CO, and
CO2 must be heated and insulated over the entire length, to
prevent water condensation, to a minimum temperature of 55 deg. C.
Sample gas temperature immediately before the first filter in the
system must be at least 55 deg. C.
(ii) Conform to the continuous NOX, CO, or CO2 sampling
and analysis system to the specifications of part 86, subpart D of this
chapter with the following exceptions and revisions:
(A) Heat the system components requiring heating only to prevent
water condensation, the minimum component temperature is 55 deg. C.
(B) Coordinate analysis system response time with CVS flow
fluctuations and sampling time/test cycle offsets, if necessary.
(C) Use only analytical gases conforming to the specifications of
Sec. 91.312 for calibration, zero and span checks.
(D) Use a calibration curve conforming to Sec. 91.321 for CO and
CO2 and Sec. 91.318 for NOX for any range on a linear
analyzer below 155 ppm.
(iii) Convert the chart deflections or voltage output of analyzers
with non-linear calibration curves to concentration values by the
calibration curve(s) specified in Sec. 91.321 before flow correction
(if used) and subsequent integration takes place.
Sec. 91.423 Exhaust gas analytical system; CVS grab sample.
(a) Schematic drawings. Figure 4 in appendix B of this subpart is a
schematic drawing of the exhaust gas analytical system used for
analyzing CVS grab ``bag'' samples from spark-ignition engines. Since
various configurations can produce accurate results, exact conformance
with the drawing is not required. Additional components such as
instruments, valves, solenoids, pumps and switches may be used to
provide additional information and coordinate the functions of the
component systems. Other components such as snubbers, which are not
needed to maintain accuracy in some systems, may be excluded if their
exclusion is based on good engineering judgement.
(b) Major component description. The analytical system, Figure 4 in
Appendix B of this subpart, consists of a flame ionization detector
(FID) or a heated flame ionization detector (HFID) for the measurement
of hydrocarbons, nondispersive infrared analyzers (NDIR) for the
measurement of carbon monoxide and carbon dioxide, and a
chemiluminescence detector (CLD) (or heated CLD (HCLD)) for the
measurement of oxides of nitrogen. The exhaust gas analytical system
shall conform to the following requirements:
(1) The CLD (or HCLD) requires that the nitrogen dioxide present in
the sample be converted to nitric oxide before analysis. Other types of
analyzers may be used if shown to yield equivalent results and if
approved in advance by the Administrator.
(2) If CO instruments are used which are essentially free of
CO2 and water vapor interference, the use of the conditioning
column may be deleted. (See Secs. 91.317 and 91.320.)
(3) A CO instrument will be considered to be essentially free of
CO2 and water vapor interference if its response to a mixture of
three percent CO2 in N2, which has been bubbled through water
at room temperature, produces an equivalent CO response, as measured on
the most sensitive CO range, which is less than one percent of full
scale CO concentration on ranges above 300 ppm full scale or less than
3 ppm on ranges below 300 ppm full scale. (See Sec. 91.317.)
(c) Alternate analytical systems. Analysis systems meeting the
specifications and requirements of this subpart for dilute sampling may
be used upon approval of the Administrator.
(d) Other analyzers and equipment. Other types of analyzers and
equipment may be used if shown to yield equivalent results and if
approved in advance by the Administrator.
Sec. 91.424 Dilute sampling procedure--CVS calibration.
(a) The CVS is calibrated using an accurate flowmeter and
restrictor valve. (1) The flowmeter calibration shall be traceable to
the National Institute for Standards and Testing (NIST), and will serve
as the reference value (NIST ``true'' value) for the CVS calibration.)
(Note: In no case should an upstream screen or other restriction
which can affect the flow be used ahead of the flowmeter unless
calibrated throughout the flow range with such a device.)
[[Page 52137]]
(2) The CVS calibration procedures are designed for use of a
``metering venturi'' type flowmeter. Large radius or American Society
of Mechanical Engineers (ASME) flow nozzles are considered equivalent
if traceable to NIST measurements. Other measurement systems may be
used if shown to be equivalent under the test conditions in this
section and traceable to NIST measurements.
(3) Measurements of the various flowmeter parameters are recorded
and related to flow through the CVS.
(4) Procedures used by EPA for both PDP-CVS and CFV-CVS are
outlined below. Other procedures yielding equivalent results may be
used if approved in advance by the Administrator.
(b) After the calibration curve has been obtained, verification of
the entire system may be performed by injecting a known mass of gas
into the system and comparing the mass indicated by the system to the
true mass injected. An indicated error does not necessarily mean that
the calibration is wrong, since other factors can influence the
accuracy of the system (e.g., analyzer calibration, leaks, or HC
hangup). A verification procedure is found in paragraph (e) of this
section.
(c) PDP-CVS calibration. (1) The following calibration procedure
outlines the equipment, the test configuration, and the various
parameters which must be measured to establish the flow rate of the CVS
pump.
(i) All the parameters related to the pump are simultaneously
measured with the parameters related to a flowmeter which is connected
in series with the pump.
(ii) The calculated flow rate, in cm3/s, (at pump inlet
absolute pressure and temperature) can then be plotted versus a
correlation function which is the value of a specific combination of
pump parameters.
(iii) The linear equation which relates the pump flow and the
correlation function is then determined.
(iv) In the event that a CVS has a multiple speed drive, a
calibration for each range used must be performed.
(2) This calibration procedure is based on the measurement of the
absolute values of the pump and flowmeter parameters that relate the
flow rate at each point. Two conditions must be maintained to assure
the accuracy and integrity of the calibration curve:
(i) The temperature stability must be maintained during
calibration. (Flowmeters are sensitive to inlet temperature
oscillations; this can cause the data points to be scattered. Gradual
changes in temperature are acceptable as long as they occur over a
period of several minutes.)
(ii) All connections and ducting between the flowmeter and the CVS
pump must be absolutely void of leakage.
(3) During an exhaust emission test the measurement of these same
pump parameters enables the user to calculate the flow rate from the
calibration equation.
(4) Connect a system as shown in Figure 5 in appendix B of this
subpart. Although particular types of equipment are shown, other
configurations that yield equivalent results may be used if approved in
advance by the Administrator. For the system indicated, the following
measurements and accuracies are required:
Calibration Data Measurements
--------------------------------------------------------------------------------------------------------------------------------------------------------
Parameter Symbol Units Sensor-readout tolerances
--------------------------------------------------------------------------------------------------------------------------------------------------------
Barometric pressure (corrected)........ PB............................... kPa.............................. 0.34 kPa
Ambient temperature.................... TEI.............................. deg.C........................... 0.28 deg.C
Air temperature into metering venturi.. TEI.............................. deg.C........................... 1.11 deg.C
Pressure drop between the inlet and PED.............................. kPa.............................. 0.012 kPa
throat of metering venturi.
Air flow............................... QS............................... m3/min........................... 0.5 percent of NIST value
Air temperature at CVS pump inlet...... PTI.............................. deg.C........................... 1.11 deg.C
Pressure depression at CVS pump inlet.. PPI.............................. kPa.............................. 0.055 kPa
Pressure head at CVS pump outlet....... PPO.............................. kPa.............................. 0.055 kPa
Air temperature at CVS pump outlet PTO.............................. deg.C........................... 1.11 deg.C
(optional).
Pump revolutions during test period.... N................................ Revs............................. 1 Rev.
Elapsed time for test period........... t................................ s................................ 0.5 s.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(5) After the system has been connected as shown in Figure 5 of
appendix B of this subpart, set the variable restrictor in the wide
open position and run the CVS pump for 20 minutes. Record the
calibration data.
(6) Reset the restrictor valve to a more restricted condition in an
increment of pump inlet depression that will yield a minimum of six
data points for the total calibration. Allow the system to stabilize
for 3 minutes and repeat the data acquisition.
(7) Data analysis:
(i) The air flow rate, Qs, at each test point is calculated in
standard cubic feet per minute 20 deg.C, 101.3 kPa from the flowmeter
data using the manufacturer's prescribed method.
(ii) The air flow rate is then converted to pump flow, Vo, in
cubic meter per revolution at absolute pump inlet temperature and
pressure:
[GRAPHIC] [TIFF OMITTED] TR04OC96.029
Where:
VO=Pump flow, m3/rev at TP, PP,
QS=Meter air flow rate in standard cubic meters per minute,
standard conditions are 20 deg.C, 101.3 kPa.
n=Pump speed in revolutions per minute.
Tp=Pump inlet temperature in Kelvin,=PTI+273 [ deg.K].
PP=Absolute pump inlet pressure, kPa.
=PP-PPI
Where:
PP=barometric pressure, kPa.
PPI=Pump inlet depression, kPa.
(iii) The correlation function at each test point is then
calculated from the calibration data:
[GRAPHIC] [TIFF OMITTED] TR04OC96.030
Where:
XO=correlation function.
p = The pressure differential from pump inlet to pump
outlet, kPa.
=PE-PP.
PE=Absolute pump outlet pressure, [kPa]
=PB+PPO
Where:
PPO=Pressure head at pump outlet, kPa (inches fluid).
(iv) A linear least squares fit is performed to generate the
calibration equation which has the form:
[[Page 52138]]
VO = DO - M(XO)
DO and M are the intercept and slope constants, respectively,
describing the regression line.
(8) A CVS system that has multiple speeds should be calibrated on
each speed used. The calibration curves generated for the ranges will
be approximately parallel and the intercept values, DO, will increase
as the pump flow range decreases.
(9) If the calibration has been performed carefully, the calculated
values from the equation will be within 0.50 percent of
the measured value of VO. Values of M will vary from one pump to
another, but values of DO for pumps of the same make, model and
range should agree within three percent of each other.
Calibrations should be performed at pump start-up and after major
maintenance to assure the stability of the pump slip rate. Analysis of
mass injection data will also reflect pump slip stability.
(d) CFV-CVS calibration. (1) Calibration of the CFV is based upon
the flow equation for a critical venturi.
(i) Gas flow is a function of inlet pressure and temperature:
[GRAPHIC] [TIFF OMITTED] TR04OC96.031
QS=flow rate [m3/min.].
KV=calibration coefficient.
P=absolute pressure [kPa].
TK=absolute temperature [ deg.K].
(ii) The calibration procedure described in paragraph (d)(3) of
this section establishes the value of the calibration coefficient at
measured values of pressure, temperature and air flow.
(2) The manufacturer's recommended procedure shall be followed for
calibrating electronic portions of the CFV.
(3) Measurements necessary for flow calibration are as follows:
Calibration Data Measurements
--------------------------------------------------------------------------------------------------------------------------------------------------------
Parameter Symbol Units Tolerances
--------------------------------------------------------------------------------------------------------------------------------------------------------
Barometric Pressure (corrected)........ PB............................... kPa.............................. 0.34 kPa
Air Temperature into flow meter........ TEI.............................. deg.C........................... 0.28 deg.C
Pressure drop between the inlet and PED.............................. kPa.............................. 0.012 kPa
throat of metering venturi.
Air flow............................... QS............................... m3/min........................... 0.5 percent of NIST value
CVS inlet depression................... PPI.............................. kPa.............................. 0.055 kPa
Pressure head at CVS pump outlet....... PPO.............................. kPa.............................. 0.055 kPa
Temperature at venturi inlet........... TV............................... deg.C........................... 2.22 deg.C
--------------------------------------------------------------------------------------------------------------------------------------------------------
(4) Set up equipment as shown in Figure 6 in appendix B of this
subpart and eliminate leaks. (Leaks between the flow measuring devices
and the critical flow venturi will seriously affect the accuracy of the
calibration.)
(5) Set the variable flow restrictor to the open position, start
the blower, and allow the system to stabilize. Record data from all
instruments.
(6) Vary the flow restrictor and make at least eight readings
across the critical flow range of the venturi.
(7) Data analysis. The data recorded during the calibration are to
be used in the following calculations:
(i) The air flow rate (designated as Qs) at each test point is
calculated in standard cubic feet per minute from the flow meter data
using the manufacturer's prescribed method.
(ii) Calculate values of the calibration coefficient for each test
point:
[GRAPHIC] [TIFF OMITTED] TR04OC96.032
QS=Flow rate in standard cubic meter per minute, at the standard
conditions of 20 deg.C, 101.3 kPa.
TV=Temperature at venturi inlet, deg.K.
PV=Pressure at venturi inlet, kPA
=PB-PPI
Where:
PPI = Venturi inlet pressure depression, kPa.
(iii)Plot KV as a function of venturi inlet pressure. For
choked flow, KV will have a relatively constant value. As pressure
decreases (vacuum increases), the venturi becomes unchoked and KV
decreases. (See Figure 7 in appendix B of this subpart)
(iv) For a minimum of eight points in the critical region calculate
an average KV and the standard deviation.
(v) If the standard deviation exceeds 0.3 percent of the average
KV, take corrective action.
(e) CVS system verification. The following ``gravimetric''
technique can be used to verify that the CVS and analytical instruments
can accurately measure a mass of gas that has been injected into the
system. (Verification can also be accomplished by constant flow
metering using critical flow orifice devices.)
(1) Obtain a small cylinder that has been charged with 99.5 percent
or greater propane or carbon monoxide gas (CAUTION--carbon monoxide is
poisonous).
(2) Determine a reference cylinder weight to the nearest 0.01
grams.
(3) Operate the CVS in the normal manner and release a quantity of
pure propane into the system during the sampling period (approximately
five minutes).
(4) The calculations are performed in the normal way except in the
case of propane. The density of propane (0.6109 kg/m\3\carbon atom is
used in place of the density of exhaust hydrocarbons.
(5) The gravimetric mass is subtracted from the CVS measured mass
and then divided by the gravimetric mass to determine the percent
accuracy of the system.
(6) Good engineering practice requires that the cause for any
discrepancy greater than two percent must be found and
corrected.
Sec. 91.425 CVS calibration frequency.
Calibrate the CVS positive displacement pump or critical flow
venturi following initial installation, major maintenance or as
necessary when indicated by the CVS system verification (described in
Sec. 91.424(e)).
Sec. 91.426 Dilute emission sampling calculations.
(a) The final reported emission test results must be computed by
use of the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.033
Where:
Awm=Weighted mass emission level (HC, CO, CO2, or NOX)
for a test [g/kW-hr].
Wi=Average mass flow rate of an emission from a test engine during
mode i [g/hr].
WFi = Weighting factor for each mode i as defined in
Sec. 91.410(a).
Pi = Gross average power generated during mode i [kW] calculated
from the following equation (power for the idle mode shall always be
zero for this calculation):
[[Page 52139]]
[GRAPHIC] [TIFF OMITTED] TR04OC96.034
speed = average engine speed measured during mode i [rev./minute]
torque = average engine torque measured during mode i [N-m]
KHi = Humidity correction factor for mode i. This correction
factor only affects calculations for NOX and is equal to one for
all other emissions. KHi is also equal to one for all two-stroke
engines.
(b) The mass flow rate (Wi) of an emission for mode i is
determined from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.035
Where:
Qi = Volumetric flow rate of the dilute exhaust through the CVS at
standard conditions [m3/hr at STP].
D = Density of a specific emission (DHC, DCO, DCO2,
DNOx) in the exhaust [g/m3].
DFi = Dilution factor of the dilute exhaust during mode i.
CDi = Concentration of the emission (HC, CO, NOX) in the
dilute exhaust extracted from the CVS during mode i [ppm].
CBi = Concentration of the emission (HC, CO, NOX) in the
background sample during mode i [ppm].
STP = Standard temperature and pressure. All volumetric calculations
made for the equations in this section are to be corrected to a
standard temperature of 20 deg.C and 101.3 kPa.
(c) Densities for emissions that are to be measured for this test
procedure are:
DHC = 576.8 g/m3
DNOX = 1912 g/m3
DCO = 1164 g/m3
DCO2 = 1829 g/m3
(1) The value of DHC above is calculated based on the
assumption that the fuel used has a carbon to hydrogen ratio of 1:1.85.
For other fuels, DHC can be calculated from the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.036
Where:
MHC = Molecular weight of the hydrocarbon molecule divided by the
number of carbon atoms in the molecule [g/mole].
RSTP = Ideal gas constant for a gas at STP = 0.024065 [m3-
mole].
(2) The idealized molecular weight of the exhaust hydrocarbons, ie.,
the molecular weight of the hydrocarbon molecule divided by the number
of carbon atoms in the molecule, MHC can be calculated from the
following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.037
Where:
MC = Molecular weight of carbon = 12.01 [g/mole].
MH = Molecular weight of hydrogen = 1.008 [g/mole].
= Hydrogen to carbon ratio of the test fuel.
(3) The value of DNOx above assumes that NOX in entirely
in the form of NO2.
(d) The dilution factor (DF) is the ratio of the volumetric flow
rate of the background air to that of the raw engine exhaust. The
following formula is used to determine DF:
[GRAPHIC] [TIFF OMITTED] TR04OC96.038
Where:
CD HC = Concentration of HC in the dilute sample [ppm].
CD CO = Concentration of CO in the dilute sample [ppm].
CD CO2 = Concentration of CO2 in the dilute sample [ppm].
(e) The humidity correction factor KH is an adjustment made to
the measured NOX. This corrects for the sensitivity that a spark-
ignition engine has to the humidity of its combustion air. The
following formula is used to determine KH for NOX
calculations:
[GRAPHIC] [TIFF OMITTED] TR04OC96.039
Where:
H = Absolute humidity of the engine intake air [grams of water per
kilogram of dry air].
(f) The absolute humidity of the engine intake air H is calculated
using the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.040
Where:
Pdew = Saturated vapor pressure at the dew point temperature
[kPa].
Pb = Barometric pressure [kPa].
(g) The fuel mass flow rate Fi can be either measured or
calculated using the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.041
Where:
Mf = Mass of fuel consumed by the engine during the mode [g].
T = Duration of the sampling period [hr].
(h) The mass of fuel consumed during the mode sampling period,
MFUEL can be calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.042
Where:
GS = Mass of carbon measured during the mode sampling period [g].
R2 = The fuel carbon weight fraction, which is the mass of carbon
in fuel per mass of fuel [g/g].
(i) The grams of carbon measured during the mode GS can be
calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.043
Where:
HCmass = mass of hydrocarbon emissions for the mode sampling
period [g].
COmass = mass of carbon monoxide emissions for the mode sampling
period [g].
CO2 mass = mass of carbon dioxide emissions for the mode sampling
period [g].
= The atomic hydrogen to carbon ratio of the fuel.
Sec. 91.427 Catalyst thermal stress resistance evaluation.
(a)(1) The purpose of the evaluation procedure specified in this
section is to determine the effect of thermal stress on catalyst
conversion efficiency. The thermal stress is imposed on the test
catalyst by exposing it to quiescent heated air in an oven. The
evaluation of the effect of such stress on catalyst performance is
based on the resultant degradation of the efficiency with which the
conversions of specific pollutants are promoted. The application of
this evaluation procedure involves the several steps that are described
in the following paragraphs.
[[Page 52140]]
(2) The engine manufacturer need not submit catalyst conversion
efficiency data for pollutants that the catalyst being tested was not
designed to reduce/oxidize. The engine manufacturer must specify the
pollutants that the catalyst will be converting and submit catalyst
conversion efficiency data on only those pollutants.
(b) Determination of initial conversion efficiency.
(1) A synthetic exhaust gas mixture having the composition
specified in Sec. 91.329 is heated to a temperature of 450 deg.C
plus-minus 5 deg.C and passed through the new test catalyst or,
optionally, a test catalyst that has been exposed to temperatures less
than or equal to 500 deg.C for less than or equal to two hours, under
flow conditions that are representative of anticipated in-use
conditions.
(2) The concentration of each pollutant of interest, that is,
hydrocarbons, carbon monoxide, or oxides of nitrogen, in the effluent
of the catalyst is determined by means of the instrumentation that is
specified for exhaust gas analysis in subpart D of this part.
(3) The conversion efficiency for each pollutant is determined by:
(i) Subtracting the effluent concentration from the initial
concentration,
(ii) Dividing this result by the initial concentration,
(iii) Multiplying this result by 100 percent.
(c) Imposition of thermal stress.
(1) The catalyst is placed in an oven that has been pre-heated to
1000 deg.C and the temperature of the air in the oven is maintained at
1000 deg.C plus-minus 10 deg.C for six hours. Optionally, the
catalyst may instead be placed in an oven having a 90% nitrogen/10%
water vapor environment that has been pre-heated to at least 850 deg.C
and the temperature of the nitrogen/water vapor environment in the oven
is maintained at 850 deg.C plus-minus 10 deg.C for six hours.
(2) The catalyst is removed from the oven and allowed to cool to
room temperature.
(d) Determination of final conversion efficiency. The steps listen
in paragraph (b) of this section are repeated.
(e) Determination of conversion efficiency degradation.
(1) The final conversion efficiency determined in paragraph (c) of
this section is subtracted from the initial conversion efficiency
determined in paragraph (b) of this section.
(2) This result is divided by the initial conversion efficiency.
(3) This result is multiplied by 100 percent.
(f) Determination of compliance with degradation limit. The percent
degradation determined in paragraph (e) of this section must not be
greater than 20 percent.
Appendix A to Subpart E of Part 91--Tables
Table 1--Parameters To Be Measured or Calculated and Recorded.
------------------------------------------------------------------------
Parameter Units
------------------------------------------------------------------------
Airflow rate (dry), if applicable........... g/h
Fuel flow rate.............................. g/h
Engine speed................................ rpm
Engine torque output........................ Nbullet.m
Power output................................ kW
Air inlet temperature....................... deg.C
Air humidity................................ mg/kg
Coolant temperature (liquid cooled)......... deg.C
Exhaust mixing chamber surface temperature, deg.C
if applicable.
Exhaust sample line temperature, if deg.C
applicable.
Total accumulated hours of engine operation. h
Barometric pressure......................... kPa
------------------------------------------------------------------------
Table 2.--Test Cycle and Weighting Factors for Marine Engines
------------------------------------------------------------------------
Engine
Engine torque as
speed as a a
percentage percentage Mode
Mode No. of engine of maximum weighting
rated torque at factor
speed rated
speed
------------------------------------------------------------------------
1.................................... 100 100 0.06
2.................................... 80 71.6 0.14
3.................................... 60 46.5 0.15
4.................................... 40 25 0.25
5.................................... idle 0 0.40
------------------------------------------------------------------------
BILLING CODE 6560-50-P
[[Page 52141]]
Appendix B to Subpart E of Part 91--Figures
[GRAPHIC] [TIFF OMITTED] TR04OC96.044
[[Page 52142]]
[GRAPHIC] [TIFF OMITTED] TR04OC96.045
[[Page 52143]]
[GRAPHIC] [TIFF OMITTED] TR04OC96.046
[[Page 52144]]
[GRAPHIC] [TIFF OMITTED] TR04OC96.047
[[Page 52145]]
[GRAPHIC] [TIFF OMITTED] TR04OC96.048
[[Page 52146]]
[GRAPHIC] [TIFF OMITTED] TR04OC96.049
[[Page 52147]]
[GRAPHIC] [TIFF OMITTED] TR04OC96.050
BILLING CODE 6560-50-P
[[Page 52148]]
Subpart F--Manufacturer Production Line Testing Program
Sec. 91.501 Applicability.
(a) The requirements of this subpart F are applicable to all marine
spark-ignition engines subject to the provisions of subpart A of this
part 91.
(b) The Administrator may waive the provisions of this subpart for
a manufacturer or a specific engine family, as specified in paragraphs
(b) (1), (2) and (3) of this section.
(1) The provisions of this subpart are waived for existing
technology OB/PWC through model year 2003.
(2) Upon request by a manufacturer, the Administrator may waive the
provisions of this subpart for existing technology OB/PWC for a
specific engine family through model year 2005 if the Administrator
determines that the engine family will be phased out of production for
sale in the U.S. by the end of model year 2005. As a condition to
receiving such a waiver for either model year 2004, 2005 or both, the
manufacturer must discontinue production of engines for sale in the
U.S. according to a schedule determined by the Administrator upon
granting this waiver. Failure to do so by the manufacturer will void ab
initio the applicable certificate of conformity.
(3) A manufacturer request under paragraph (b)(2) of this section
must be in writing and apply to a specific engine family. The request
must identify the engine family designation, a written rationale
supporting the FEL choice, the type of information used as a basis for
the FEL (e.g., previous emission tests, development tests), the
specific source of the information including when the information was
generated, the requested schedule for phasing the engine family out of
production, and any other information the Administrator may require.
Sec. 91.502 Definitions.
The definitions in subpart A of this part apply to this subpart.
The following definitions also apply to this subpart.
Configuration means any subclassification of an engine family which
can be described on the basis of gross power, emission control system,
governed speed, injector size, engine calibration, and other parameters
as designated by the Administrator.
Test sample means the collection of engines selected from the
population of an engine family for emission testing.
Sec. 91.503 Production Line Testing by the Manufacturer.
(a) Manufacturers of marine SI engines shall test production line
engines from each engine family according to the provisions of this
subpart.
(b) Production line engines must be tested using the test procedure
specified in subpart E of this part that was used in certification
unless an alternate procedure is approved by the Administrator. Any
adjustable engine parameter must be set to values or positions that are
within the range recommended to the ultimate purchaser, unless
otherwise specified by the Administrator. The Administrator may specify
values within or without the range recommended to the ultimate
purchaser.
Sec. 91.504 Maintenance of records; submittal of information.
(a) The manufacturer of any new marine SI engine subject to any of
the provisions of this subpart must establish, maintain, and retain the
following adequately organized and indexed records:
(1) General records. A description of all equipment used to test
engines in accordance with Sec. 91.503. Subpart D of this part sets
forth relevant equipment requirements in Secs. 91.306, 91.308, 91.309,
and 91.313.
(2) Individual records. These records pertain to each production
line test conducted pursuant to this subpart and include:
(i) The date, time, and location of each test;
(ii) The number of hours of service accumulated on the test engine
when the test began and ended;
(iii) The names of all supervisory personnel involved in the
conduct of the production line test;
(iv) A record and description of any adjustment, repair,
preparation or modification performed prior to and/or subsequent to
approval by the Administrator pursuant to Sec. 91.507(b)(1), giving the
date, associated time, justification, name(s) of the authorizing
personnel, and names of all supervisory personnel responsible for the
conduct of the repair;
(v) If applicable, the date the engine was shipped from the
assembly plant, associated storage facility or port facility, and the
date the engine was received at the testing facility;
(vi) A complete record of all emission tests performed pursuant to
this subpart (except tests performed directly by EPA), including all
individual worksheets and/or other documentation relating to each test,
or exact copies thereof, in accordance with the record requirements
specified in Sec. 91.405.
(vii) A brief description of any significant events during testing
not otherwise described under paragraph (a)(2) of this section,
commencing with the test engine selection process and including such
extraordinary events as engine damage during shipment.
(3) The manufacturer must establish, maintain and retain general
records, pursuant to paragraph (a)(1) of this section, for each test
cell that can be used to perform emission testing under this subpart.
(b) The manufacturer must retain all records required to be
maintained under this subpart for a period of one year after completion
of all testing required for the engine family in a model year. Records
may be retained as hard copy (i.e., on paper) or reduced to microfilm,
floppy disk, or some other method of data storage, depending upon the
manufacturer's record retention procedure; provided, that in every
case, all the information contained in the hard copy is retained.
(c) The manufacturer must, upon request by the Administrator,
submit the following information with regard to engine production:
(1) Projected production or actual production for each engine
configuration within each engine family for which certification has
been requested and/or approved,
(2) Number of engines, by configuration and assembly plant,
scheduled for production or actually produced.
(d) Nothing in this section limits the Administrator's discretion
to require a manufacturer to establish, maintain, retain or submit to
EPA information not specified by this section.
(e) All reports, submissions, notifications, and requests for
approval made under this subpart must be addressed to: Manager, Engine
Compliance Programs Group 6403J, U.S. Environmental Protection Agency,
401 M Street SW, Washington, DC 20460.
(f) The manufacturer must electronically submit the results of its
production line testing using an EPA information format. The
Administrator may exempt manufacturers from this requirement upon
written request with supporting justification.
Sec. 91.505 Right of entry and access.
(a) To allow the Administrator to determine whether a manufacturer
is complying with the provisions of this or other subparts of this
part, one or more EPA enforcement officers may enter during operating
hours and upon presentation of credentials any of the following places:
(1) Any facility, including ports of entry, where any engine to be
introduced into commerce or any
[[Page 52149]]
emission-related component is manufactured, assembled, or stored;
(2) Any facility where any test conducted pursuant to this or any
other subpart or any procedure or activity connected with such test is
or was performed;
(3) Any facility where any test engine is present; and
(4) Any facility where any record required under Sec. 91.504 or
other document relating to this subpart or any other subpart of this
part is located.
(b) Upon admission to any facility referred to in paragraph (a) of
this section, EPA enforcement officers are authorized to perform the
following inspection-related activities:
(1) To inspect and monitor any aspect of engine manufacture,
assembly, storage, testing and other procedures, and to inspect and
monitor the facilities in which these procedures are conducted;
(2) To inspect and monitor any aspect of engine test procedures or
activities, including test engine selection, preparation and service
accumulation, emission test cycles, and maintenance and verification of
test equipment calibration;
(3) To inspect and make copies of any records or documents related
to the assembly, storage, selection, and testing of an engine; and
(4) To inspect and photograph any part or aspect of any engine and
any component used in the assembly thereof that is reasonably related
to the purpose of the entry.
(c) EPA enforcement officers are authorized to obtain reasonable
assistance without cost from those in charge of a facility to help the
officers perform any function listed in this subpart and they are
authorized to request the manufacturer to make arrangements with those
in charge of a facility operated for the manufacturer's benefit to
furnish reasonable assistance without cost to EPA.
(1) Reasonable assistance includes, but is not limited to,
clerical, copying, interpretation and translation services; the making
available on an EPA enforcement officer's request of personnel of the
facility being inspected during their working hours to inform the EPA
enforcement officer of how the facility operates and to answer the
officer's questions; and the performance on request of emission tests
on any engine which is being, has been, or will be used for production
line or other testing.
(2) By written request, signed by the Assistant Administrator for
Air and Radiation, and served on the manufacturer, a manufacturer may
be compelled to cause the personal appearance of any employee at such a
facility before an EPA enforcement officer. Any such employee who has
been instructed by the manufacturer to appear will be entitled to be
accompanied, represented, and advised by counsel.
(d) EPA enforcement officers are authorized to seek a warrant or
court order authorizing the EPA enforcement officers to conduct the
activities authorized in this section, as appropriate, to execute the
functions specified in this section. EPA enforcement officers may
proceed ex parte to obtain a warrant or court order whether or not the
EPA enforcement officers first attempted to seek permission from the
manufacturer or the party in charge of the facility(ies) in question to
conduct the activities authorized in this section.
(e) A manufacturer must permit an EPA enforcement officer(s) who
presents a warrant or court order to conduct the activities authorized
in this section as described in the warrant or court order. The
manufacturer must also cause those in charge of its facility or a
facility operated for its benefit to permit entry and access as
authorized in this section pursuant to a warrant or court order whether
or not the manufacturer controls the facility. In the absence of a
warrant or court order, an EPA enforcement officer(s) may conduct the
activities authorized in this section only upon the consent of the
manufacturer or the party in charge of the facility(ies) in question.
(f) It is not a violation of this part or the Clean Air Act for any
person to refuse to permit an EPA enforcement officer(s) to conduct the
activities authorized in this section if the officer(s) appears without
a warrant or court order.
(g) A manufacturer is responsible for locating its foreign testing
and manufacturing facilities in jurisdictions where local law does not
prohibit an EPA enforcement officer(s) from conducting the entry and
access activities specified in this section. EPA will not attempt to
make any inspections which it has been informed local foreign law
prohibits.
Sec. 91.506 Engine sample selection.
(a) At the start of each model year, the marine SI engine
manufacturer will begin to randomly select engines from each engine
family for production line testing at a rate of one percent. Each
engine will be selected from the end of the assembly line.
(1) For newly certified engine families: After two engines are
tested, the manufacturer will calculate the required sample size for
the model year according to the Sample Size Equation in paragraph (b)
of this section.
(2) For carry-over engine families: After one engine is tested, the
manufacturer will combine the test with the last test result from the
previous model year and then calculate the required sample size for the
model year according to the Sample Size Equation in paragraph (b) of
this section.
(b)(1) Manufacturers will calculate the required sample size for
the model year for each engine family using the Sample Size Equation
below. N is calculated from each test result. The number N indicates
the number of tests required for the model year for an engine family.
N, is recalculated after each test. Test results used to calculate the
variables in the Sample Size Equation must be final deteriorated test
results as specified in Sec. 91.509(c).
[GRAPHIC] [TIFF OMITTED] TR04OC96.051
where:
N=required sample size for the model year.
t95=95% confidence coefficient. It is dependent on the actual
number of tests completed, n, as specified in the table in paragraph
(b)(2) of this section. It defines one-tail, 95% confidence intervals.
=actual test sample standard deviation calculated from the
following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.052
xi=emission test result for an individual engine
x=mean of emission test results of the actual sample
FEL=Family Emission Limit
n=The actual number of tests completed in an engine family
(2) Actual Number of Tests (n) & 1-tail Confidence Coefficients
(t95)
------------------------------------------------------------------------
n t95 n t95 n t95
------------------------------------------------------------------------
2 6.31 12 1.80 22 1.72
3 2.92 13 1.78 23 1.72
4 2.35 14 1.77 24 1.71
5 2.13 15 1.76 25 1.71
6 2.02 16 1.75 26 1.71
7 1.94 17 1.75 27 1.71
8 1.90 18 1.74 28 1.70
9 1.86 19 1.73 29 1.70
10 1.83 20 1.73 30 1.70
11 1.81 21 1.72 1.645
------------------------------------------------------------------------
(3) A manufacturer must distribute the testing of the remaining
number of
[[Page 52150]]
engines needed to meet the required sample size N, evenly throughout
the remainder of the model year.
(4) After each new test, the required sample size, N, is
recalculated using updated sample means, sample standard deviations and
the appropriate 95% confidence coefficient.
(5) A manufacturer must continue testing and updating each engine
family's sample size calculations according to paragraphs (b)(1)
through (b)(4) of this section until a decision is made to stop testing
as described in paragraph (b)(6) of this section or a noncompliance
decision is made pursuant to Sec. 91.510(b).
(6) If, at any time throughout the model year, the calculated
required sample size, N, for an engine family is less than or equal to
the actual sample size, n, and the sample mean, x, for HC+NOX is
less than or equal to the FEL, the manufacturer may stop testing that
engine family.
(7) If, at any time throughout the model year, the sample mean, x,
for HC+NOX is greater than the FEL, the manufacturer must continue
testing that engine family at the appropriate maximum sampling rate.
(8) The maximum required sample size for an engine family
(regardless of the required sample size, N, as calculated in paragraph
(b)(1) of this section) is the lesser of thirty tests per model year or
one percent of projected annual production for that engine family for
that model year.
(9) Manufacturers may elect to test additional randomly chosen
engines. All additional randomly chosen engines tested in accordance
with the testing procedures specified in Sec. 91.507 must be included
in the Sample Size and Cumulative Sum equation calculations as defined
in paragraph (b)(1) of this section and Sec. 91.508(a), respectively.
(c) The manufacturer must produce and assemble the test engines
using its normal production and assembly process for engines to be
distributed into commerce.
(d) No quality control, testing, or assembly procedures will be
used on any test engine or any portion thereof, including parts and
subassemblies, that have not been or will not be used during the
production and assembly of all other engines of that family, unless the
Administrator approves the modification in production or assembly
procedures.
Sec. 91.507 Test procedures.
(a)(1) For marine SI engines subject to the provisions of this
subpart, the prescribed test procedures are specified in subpart E of
this part.
(2) The Administrator may, on the basis of a written application by
a manufacturer, prescribe test procedures other than those specified in
paragraph (a)(1) of this section for any marine engine he or she
determines is not susceptible to satisfactory testing using procedures
specified in paragraph (a)(1) of this section.
(b)(1) The manufacturer may not adjust, repair, prepare, or modify
any test engine and may not perform any emission test on any test
engine unless this adjustment, repair, preparation, modification and/or
test is documented in the manufacturer's engine assembly and inspection
procedures and is actually performed by the manufacturer or unless this
adjustment, repair, preparation, modification and/or test is required
or permitted under this subpart or is approved in advance by the
Administrator.
(2) The Administrator may adjust or require to be adjusted any
engine parameter which the Administrator has determined to be subject
to adjustment for certification, production line testing and Selective
Enforcement Audit testing, to any setting within the physically
adjustable range of that parameter, as determined by the Administrator,
prior to the performance of any test. However, if the idle speed
parameter is one which the Administrator has determined to be subject
to adjustment, the Administrator may not adjust it or require that it
be adjusted to any setting which causes a lower engine idle speed than
would have been possible within the physically adjustable range of the
idle speed parameter if the manufacturer had accumulated 12 hours of
service on the engine under paragraph (c) of this section, all other
parameters being identically adjusted for the purpose of the
comparison. The manufacturer may be requested to supply information
necessary to establish an alternate minimum idle speed. The
Administrator, in making or specifying these adjustments, may consider
the effect of the deviation from the manufacturer's recommended setting
on emission performance characteristics as well as the likelihood that
similar settings will occur on in-use engines. In determining
likelihood, the Administrator may consider factors such as, but not
limited to, the effect of the adjustment on engine performance
characteristics and information from similar in-use engines.
(c) Service Accumulation. (1) Prior to performing exhaust emission
production line testing, the manufacturer may accumulate on each test
engine a number of hours of service equal to the greater of 12 hours or
the number of hours the manufacturer accumulated during certification
on the emission data engine for each engine family.
(2) Service accumulation must be performed in a manner using good
engineering judgment to obtain emission results representative of
production line engines.
(d) The manufacturer may not perform any maintenance on test
engines after selection for testing.
(e) If an engine is shipped to a remote facility for production
line testing, and an adjustment or repair is necessary because of
shipment, the engine manufacturer must perform the necessary adjustment
or repair only after the initial test of the engine, except in cases
where the Administrator has determined that the test would be
impossible or unsafe to perform or would permanently damage the engine.
Engine manufacturers must report to the Administrator, in the quarterly
report required by Sec. 91.509(e), all adjustments or repairs performed
on test engines prior to each test.
(f) If an engine cannot complete the service accumulation or an
emission test because of a malfunction, the manufacturer may request
that the Administrator authorize either the repair of that engine or
its deletion from the test sequence.
(g) Testing. A manufacturer must test engines with the test
procedure specified in subpart E of this part to demonstrate compliance
with the applicable FEL. If alternate procedures were used in
certification, then those alternate procedures must be used in
production line testing.
(h) Retesting. (1) If an engine manufacturer reasonably determines
that an emission test of an engine is invalid, the engine may be
retested. Emission results from all tests must be reported to EPA. The
engine manufacturer must also include a detailed explanation of the
reasons for invalidating any test in the quarterly report required in
Sec. 91.509(e). In the event a retest is performed, a request may be
made to the Administrator, within ten days of the end of the production
quarter, for permission to substitute the after-repair test results for
the original test results. The Administrator will either affirm or deny
the request by the engine manufacturer within ten working days from
receipt of the request.
Sec. 91.508 Cumulative Sum (CumSum) Procedure
(a) Manufacturers must construct the following CumSum Equation for
[[Page 52151]]
HC+NOX for each engine family. Test results used to calculate the
variables in the CumSum Equation must be final deteriorated test
results as defined in Sec. 91.509(c).
Ci = max[0 0R (Ci-1 + Xi - (FEL + F))]
Where:
Ci = The current CumSum statistic
Ci-1 = The previous CumSum statistic. Prior to any testing, the
CumSum statistic = 0 (i.e. C0 = 0)
Xi = The current emission test result for an individual engine
FEL = Family Emission Limit
F = 0.25 x
After each test, Ci is compared to the action limit, H, the
quantity which the CumSum statistic must exceed, in two consecutive
tests, before the engine family may be determined to be in
noncompliance for purposes of Sec. 91.510.
H = The Action Limit. It is 5.0 x , and is a function of the
standard deviation, .
= is the sample standard deviation and is recalculated after
each test.
(b) After each engine is tested, the CumSum statistic shall be
promptly updated according to the CumSum Equation in paragraph (a) of
this section.
(c)(1) If, at any time during the model year, a manufacturer amends
the application for certification for an engine family as specified in
paragraph (a) of Sec. 91.122 by performing an engine family
modification (i.e. a change such as a running change involving a
physical modification to an engine, a change in specification or
setting, the addition of a new configuration, or the use of a different
deterioration factor) with no changes to the FEL, all previous sample
size and CumSum statistic calculations for the model year will remain
unchanged.
(2) If, at any time during the model year, a manufacturer amends
the application for certification for an engine family as specified in
paragraph (a) of Sec. 91.122 by modifying its FEL as a result of an
engine family modification, the manufacturer must continue its
calculations by inserting the new FEL into the sample size equation as
specified in Sec. 91.506(b)(1) and into the CumSum equation in
paragraph (a) of this section. All previous calculations remain
unchanged. If the sample size calculation indicates that additional
tests are required, then those tests must be performed. The CumSum
statistic recalculation must not indicate that the family has exceeded
the action limit for two consecutive tests. The manufacturer's final
credit report as required by Sec. 91.210 must break out the credits
that result from each FEL and corresponding CumSum analysis for each
FEL set.
(3) If, at any time during the model year, a manufacturer amends
the application for certification for an engine family as specified in
paragraph (a) of Sec. 91.122 by modifying its FEL without performing an
engine modification, all previous sample size and CumSum statistic
calculations for the model year must be recalculated using the new FEL.
If the sample size calculation indicates that additional tests are
required, then those tests must be performed. The CumSum statistic
recalculation must not indicate that the family has exceeded the action
limit for two consecutive tests.
(4) If, at any time after the end of the model year but prior to
the manufacturer's final credit report submittal a
FR Doc. 96-23063 Control of Air Pollution; Final Rule for New Gasoline Spark- Ignition Marine Engines; Exemptions for New Nonroad Compression- Ignition Engines at or Above 37 Kilowatts and New Nonroad Spark- Ignition Engines at or Below 19 Kilowatts
s specified in
Sec. 91.210, a manufacturer changes an FEL for an entire family, or for
an affected part of the year's production, as specified in paragraph
(a) of Sec. 91.122, in cases where there were one or more mid-year
engine family modifications, all previous sample size and CumSum
statistic calculations for the model year, or part of the model year
affected by an engine family change, must be recalculated using the new
FEL. The sample size equation must not indicate a larger number of
tests than were appropriately performed using the previous FEL and the
CumSum statistic recalculation must not exceed the action limit in two
consecutive tests. The manufacturer's final credit report as required
by Sec. 91.210 must break out the credits that result from each FEL and
corresponding CumSum analysis for each FEL set.
Sec. 91.509 Calculation and reporting of test results.
(a) Initial test results are calculated following the applicable
test procedure specified in paragraph (a) of Sec. 91.507. The
manufacturer rounds these results, in accordance with ASTM E29-93a, to
the number of decimal places contained in the applicable emission
standard expressed to one additional significant figure. (ASTM E29-93a
has been incorporated by reference. See Sec. 91.6.)
(b) Final test results are calculated by summing the initial test
results derived in paragraph (a) of this section for each test engine,
dividing by the number of tests conducted on the engine, and rounding
in accordance with ASTM E29-93a to the same number of decimal places
contained in the applicable standard expressed to one additional
significant figure.
(c) The final deteriorated test results for each test engine are
calculated by applying the appropriate deterioration factors, derived
in the certification process for the engine family, to the final test
results, and rounding in accordance with ASTM E29-93a to the same
number of decimal places contained in the applicable standard expressed
to one additional significant figure.
(d) If, at any time during the model year, the CumSum statistic
exceeds the applicable action limit, H, in two consecutive tests, the
engine family may be determined to be in noncompliance and the
manufacturer must notify EPA within two working days of such exceedance
by the CumSum statistic.
(e) Within 30 calendar days of the end of each quarter, each engine
manufacturer must submit to the Administrator a report which includes
the following information:
(1) The location and description of the manufacturer's or other's
exhaust emission test facilities which were utilized to conduct testing
reported pursuant to this section;
(2) Total production and sample sizes, N and n, for each engine
family;
(3) The FEL against which each engine family was tested;
(4) A description of the process to obtain engines on a random
basis;
(5) A description of the test engines;
(6) For each test conducted,
(i) A description of the test engine, including:
(A) Configuration and engine family identification,
(B) Year, make, and build date,
(C) Engine identification number, and
(D) Number of hours of service accumulated on engine prior to
testing;
(ii) Location where service accumulation was conducted and
description of accumulation procedure and schedule;
(iii) Test number, date, test procedure used, initial test results
before and after rounding, and final test results for all exhaust
emission tests, whether valid or invalid, and the reason for
invalidation, if applicable;
(iv) A complete description of any adjustment, modification,
repair, preparation, maintenance, and/or testing which was performed on
the test engine, was not reported pursuant to any other paragraph of
this subpart, and will not be performed on all other production
engines;
(v) A CumSum analysis, as required in Sec. 91.508, of the
production line test results for each engine family;
(vi) Any other information the Administrator may request relevant
to the determination whether the new engines being manufactured by the
manufacturer do in fact conform with the regulations with respect to
which the certificate of conformity was issued;
[[Page 52152]]
(7) For each failed engine as defined in Sec. 91.510(a), a
description of the remedy and test results for all retests as required
by Sec. 91.511(g);
(8) The date of the end of the engine manufacturer's model year
production for each engine family; and
(9) The following signed statement and endorsement by an authorized
representative of the manufacturer:
This report is submitted pursuant to sections 213 and 208 of the
Clean Air Act. This production line testing program was conducted in
complete conformance with all applicable regulations under 40 CFR
part 91 et seq. No emission-related changes to production processes
or quality control procedures for the engine family tested have been
made during this production line testing program that affect engines
from the production line. All data and information reported herein
is, to the best of (Company Name) knowledge, true and accurate. I am
aware of the penalties associated with violations of the Clean Air
Act and the regulations thereunder. (Authorized Company
Representative.)
Sec. 91.510 Compliance with criteria for production line testing.
(a) A failed engine is one whose final deteriorated test results
pursuant to Sec. 91.509(c), for HC + NOX exceeds the applicable
Family Emission Limit (FEL).
(b) An engine family may be determined to be in noncompliance, if
at any time throughout the model year, the CumSum statistic, Ci,
for HC+NOX, is greater than the action limit, H, for two
consecutive tests.
Sec. 91.511 Suspension and revocation of certificates of conformity.
(a) The certificate of conformity is automatically suspended with
respect to any engine failing pursuant to paragraph (a) of Sec. 91.510
effective from the time that testing of that engine is completed.
(b) The Administrator may suspend the certificate of conformity for
an engine family which is determined to be in noncompliance pursuant to
Sec. 90.510(b). This suspension will not occur before fifteen days
after the engine family is determined to be in noncompliance.
(c) If the results of testing pursuant to these regulations
indicate that engines of a particular family produced at one plant of a
manufacturer do not conform to the regulations with respect to which
the certificate of conformity was issued, the Administrator may suspend
the certificate of conformity with respect to that family for engines
manufactured by the manufacturer at all other plants.
(d) Notwithstanding the fact that engines described in the
application for certification may be covered by a certificate of
conformity, the Administrator may suspend such certificate immediately
in whole or in part if the Administrator finds any one of the following
infractions to be substantial:
(1) The manufacturer refuses to comply with any of the requirements
of this subpart.
(2) The manufacturer submits false or incomplete information in any
report or information provided to the Administrator under this subpart.
(3) The manufacturer renders inaccurate any test data submitted
under this subpart.
(4) An EPA enforcement officer is denied the opportunity to conduct
activities authorized in this subpart and a warrant or court order is
presented to the manufacturer or the party in charge of the facility in
question.
(5) An EPA enforcement officer is unable to conduct activities
authorized in Sec. 91.505 because a manufacturer has located its
facility in a foreign jurisdiction where local law prohibits those
activities.
(e) The Administrator shall notify the manufacturer in writing of
any suspension or revocation of a certificate of conformity in whole or
in part. A suspension or revocation is effective upon receipt of the
notification or fifteen days from the time an engine family is
determined to be in noncompliance pursuant to Sec. 91.510(b), whichever
is later, except that the certificate is immediately suspended with
respect to any failed engines as provided for in paragraph (a) of this
section.
(f) The Administrator may revoke a certificate of conformity for an
engine family after the certificate has been suspended pursuant to
paragraph (b) or (c) of this section if the proposed remedy for the
nonconformity, as reported by the manufacturer to the Administrator, is
one requiring a design change or changes to the engine and/or emission
control system as described in the application for certification of the
affected engine family.
(g) Once a certificate has been suspended for a failed engine, as
provided for in paragraph (a) of this section, the manufacturer must
take the following actions before the certificate is reinstated for
that failed engine:
(1) Remedy the nonconformity;
(2) Demonstrate that the engine conforms to the Family Emission
Limit by retesting the engine in accordance with these regulations; and
(3) Submit a written report to the Administrator, after successful
completion of testing on the failed engine, which contains a
description of the remedy and test results for each engine in addition
to other information that may be required by this part.
(h) Once a certificate for a failed engine family has been
suspended pursuant to paragraph (b), (c) or (d) of this section, the
manufacturer must take the following actions before the Administrator
will consider reinstating the certificate:
(1) Submit a written report to the Administrator which identifies
the reason for the noncompliance of the engines, describes the proposed
remedy, including a description of any proposed quality control and/or
quality assurance measures to be taken by the manufacturer to prevent
future occurrences of the problem, and states the date on which the
remedies will be implemented.
(2) Demonstrate that the engine family for which the certificate of
conformity has been suspended does in fact comply with the regulations
of this part by testing as many engines as needed so that the CumSum
statistic, as calculated in Sec. 91.508(a), falls below the action
limit. Such testing must comply with the provisions of this part. If
the manufacturer elects to continue testing individual engines after
suspension of a certificate, the certificate is reinstated for any
engine actually determined to be in conformance with the Family
Emission Limits through testing in accordance with the applicable test
procedures, provided that the Administrator has not revoked the
certificate pursuant to paragraph (f) of this section.
(i) Once the certificate has been revoked for an engine family, if
the manufacturer desires to continue introduction into commerce of a
modified version of that family, the following actions must be taken
before the Administrator may issue a certificate for that modified
family:
(1) If the Administrator determines that the proposed change(s) in
engine design may have an effect on emission performance deterioration,
the Administrator shall notify the manufacturer, within five working
days after receipt of the report in paragraph (h)(1) of this section,
whether subsequent testing under this subpart will be sufficient to
evaluate the proposed change or changes or whether additional testing
will be required; and
(2) After implementing the change or changes intended to remedy the
nonconformity, the manufacturer must demonstrate that the modified
engine family does in fact conform with the regulations of this part by
testing as many engines as needed from the modified engine family so
that the CumSum statistic, as calculated in
[[Page 52153]]
Sec. 91.508(a) using the newly assigned FEL if applicable, falls below
the action limit. When both of these requirements are met, the
Administrator shall reissue the certificate or issue a new certificate,
as the case may be, to include that family. As long as the CumSum
statistic remains above the action limit, the revocation remains in
effect.
(j) At any time subsequent to a suspension of a certificate of
conformity for a test engine pursuant to paragraph (a) of this section,
but not later than 15 days (or such other period as may be allowed by
the Administrator) after notification of the Administrator's decision
to suspend or revoke a certificate of conformity in whole or in part
pursuant to paragraphs (b), (c), or (f) of this section, a manufacturer
may request a hearing as to whether the tests have been properly
conducted or any sampling methods have been properly applied.
(k) Any suspension of a certificate of conformity under paragraph
(d) of this section:
(1) Shall be made only after the manufacturer concerned has been
offered an opportunity for a hearing conducted in accordance with
Secs. 91.512, 91.513, and 91.514 and
(2) Need not apply to engines no longer in the possession of the
manufacturer.
(l) After the Administrator suspends or revokes a certificate of
conformity pursuant to this section and prior to the commencement of a
hearing under Sec. 91.512, if the manufacturer demonstrates to the
Administrator's satisfaction that the decision to suspend or revoke the
certificate was based on erroneous information, the Administrator shall
reinstate the certificate.
(m) To permit a manufacturer to avoid storing non-test engines
while conducting subsequent testing of the noncomplying family, a
manufacturer may request that the Administrator conditionally reinstate
the certificate for that family. The Administrator may reinstate the
certificate subject to the following condition: the manufacturer must
commit to recall all engines of that family produced from the time the
certificate is conditionally reinstated if the CumSum statistic does
not fall below the action limit and must commit to remedy any
nonconformity at no expense to the owner.
Sec. 91.512 Request for public hearing.
(a) If the manufacturer disagrees with the Administrator's decision
to suspend or revoke a certificate or disputes the basis for an
automatic suspension pursuant to Sec. 91.511(a), the manufacturer may
request a public hearing.
(b) The manufacturer's request shall be filed with the
Administrator not later than 15 days after the Administrator's
notification of his or her decision to suspend or revoke, unless
otherwise specified by the Administrator. The manufacturer shall
simultaneously serve two copies of this request upon the Manager of the
Engine Compliance Programs Group and file two copies with the Hearing
Clerk for the Agency. Failure of the manufacturer to request a hearing
within the time provided constitutes a waiver of the right to a
hearing. Subsequent to the expiration of the period for requesting a
hearing as of right, the Administrator may, in his or her discretion
and for good cause shown, grant the manufacturer a hearing to contest
the suspension or revocation.
(c) A manufacturer shall include in the request for a public
hearing:
(1) A statement as to which engine configuration(s) within a family
is to be the subject of the hearing;
(2) A concise statement of the issues to be raised by the
manufacturer at the hearing, except that in the case of the hearing
requested under Sec. 91.511(j), the hearing is restricted to the
following issues:
(i) Whether tests have been properly conducted (specifically,
whether the tests were conducted in accordance with applicable
regulations under this part and whether test equipment was properly
calibrated and functioning);
(ii) Whether sampling plans and statistical analyses have been
properly applied (specifically, whether sampling procedures and
statistical analyses specified in this subpart were followed and
whether there exists a basis for distinguishing engines produced at
plants other than the one from which engines were selected for testing
which would invalidate the Administrator's decision under
Sec. 91.511(c));
(3) A statement specifying reasons why the manufacturer believes it
will prevail on the merits of each of the issues raised; and
(4) A summary of the evidence which supports the manufacturer's
position on each of the issues raised.
(d) A copy of all requests for public hearings will be kept on file
in the Office of the Hearing Clerk and will be made available to the
public during Agency business hours.
Sec. 91.513 Administrative procedures for public hearing.
(a) The Presiding Officer shall be an Administrative Law Judge
appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930 as
amended).
(b) The Judicial Officer shall be an officer or employee of the
Agency appointed as a Judicial Officer by the Administrator, pursuant
to this section, who shall meet the qualifications and perform
functions as follows:
(1) Qualifications. A Judicial Officer may be a permanent or
temporary employee of the Agency who performs other duties for the
Agency. The Judicial Officer shall not be employed by the Office of
Enforcement and Compliance Assurance or have any connection with the
preparation or presentation of evidence for a hearing held pursuant to
this subpart. The Judicial Officer shall be a graduate of an accredited
law school and a member in good standing of a recognized Bar
Association of any state or the District of Columbia.
(2) Functions. The Administrator may consult with the Judicial
Officer or delegate all or part of the Administrator's authority to act
in a given case under this section to a Judicial Officer, provided that
this delegation does not preclude the Judicial Officer from referring
any motion or case to the Administrator when the Judicial Officer
determines such referral to be appropriate.
(c) For the purposes of this section, one or more Judicial Officers
may be designated by the Administrator. As work requires, a Judicial
Officer may be designated to act for the purposes of a particular case.
(d) Summary decision. (1) In the case of a hearing requested under
Sec. 91.511(j), when it clearly appears from the data and other
information contained in the request for a hearing that no genuine and
substantial question of fact or law exists with respect to the issues
specified in Sec. 91.512(c)(2), the Administrator may enter an order
denying the request for a hearing and reaffirming the original decision
to suspend or revoke a certificate of conformity.
(2) In the case of a hearing requested under Sec. 91.512 to
challenge a suspension of a certificate of conformity for the reason(s)
specified in Sec. 91.511(d), when it clearly appears from the data and
other information contained in the request for the hearing that no
genuine and substantial question of fact or law exists with respect to
the issue of whether the refusal to comply with this subpart was caused
by conditions and circumstances outside the control of the
manufacturer, the Administrator may enter an order denying the request
for a hearing and suspending the certificate of conformity.
(3) Any order issued under paragraph (d)(1) or (d)(2) of this
section has the force and effect of a final decision of the
[[Page 52154]]
Administrator, as issued pursuant to Sec. 91.515.
(4) If the Administrator determines that a genuine and substantial
question of fact or law does exist with respect to any of the issues
referred to in paragraphs (d)(1) and (d)(2) of this section, the
Administrator shall grant the request for a hearing and publish a
notice of public hearing in the Federal Register or by such other means
as the Administrator finds appropriate to provide notice to the public.
(e) Filing and service. (1) An original and two copies of all
documents or papers required or permitted to be filed pursuant to this
section and Sec. 91.512(c) must be filed with the Hearing Clerk of the
Agency. Filing is considered timely if mailed, as determined by the
postmark, to the Hearing Clerk within the time allowed by this section
and Sec. 91.512(b). If filing is to be accomplished by mailing, the
documents must be sent to the address set forth in the notice of public
hearing referred to in paragraph (d)(4) of this section.
(2) To the maximum extent possible, testimony will be presented in
written form. Copies of written testimony will be served upon all
parties as soon as practicable prior to the start of the hearing. A
certificate of service will be provided on or accompany each document
or paper filed with the Hearing Clerk. Documents to be served upon the
Manager of the Engine Compliance Programs Group must be sent by
registered mail to: Manager, Engine Compliance Programs Group 6403-J,
U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC
20460. Service by registered mail is complete upon mailing.
(f) Computation of Time. (1) In computing any period of time
prescribed or allowed by this section, except as otherwise provided,
the day of the act or event from which the designated period of time
begins to run is not included. Saturdays, Sundays, and federal legal
holidays are included in computing the period allowed for the filing of
any document or paper, except that when the period expires on a
Saturday, Sunday, or federal legal holiday, the period is extended to
include the next following business day.
(2) A prescribed period of time within which a party is required or
permitted to do an act is computed from the time of service, except
that when service is accomplished by mail, three days will be added to
the prescribed period.
(g) Consolidation. The Administrator or the Presiding Officer in
his or her discretion may consolidate two or more proceedings to be
held under this section for the purpose of resolving one or more issues
whenever it appears that consolidation will expedite or simplify
consideration of these issues. Consolidation does not affect the right
of any party to raise issues that could have been raised if
consolidation had not occurred.
(h) Hearing Date. To the extent possible hearings under Sec. 91.512
will be scheduled to commence within 14 days of receipt of the request
for a hearing.
Sec. 91.514 Hearing procedures.
The procedures provided in Sec. 86.1014-84(i) to (s) apply for
hearings requested pursuant to Sec. 91.512 regarding suspension,
revocation, or voiding of a certificate of conformity.
Sec. 91.515 Appeal of hearing decision.
The procedures provided in Sec. 86.1014-84(t) to (aa) apply for
appeals filed with respect to hearings held pursuant to Sec. 91.514.
Sec. 91.516 Treatment of confidential information.
Except for information required by Sec. 91.509(e)(2) and
Sec. 91.509 (e)(6)(vi), information submitted to EPA pursuant to
Sec. 91.509(e) shall be made available to the public upon request by
EPA notwithstanding any claim of confidentiality made by the submitter.
The provisions for treatment of confidential information described in
Sec. 91.7 apply to the information required by Sec. 91.509(e)(2) and
all other information submitted pursuant to this subpart.
Subpart G--Selective Enforcement Auditing Regulations
Sec. 91.601 Applicability.
The requirements of subpart G are applicable to all marine SI
engines subject to the provisions of subpart A of part 91.
Sec. 91.602 Definitions.
The definitions in subpart A and subpart F of this part apply to
this subpart. The following definitions also apply to this subpart.
Acceptable quality level (AQL) means the maximum percentage of
failing engines that can be considered a satisfactory process average
for sampling inspections.
Inspection criteria means the pass and fail numbers associated with
a particular sampling plan.
Sec. 91.603 Applicability of part 91, subpart F.
(a) For purposes of selective enforcement audits conducted under
this subpart, marine SI engines subject to provisions of subpart B of
this part are subject to regulations specified in subpart F of this
part, except:
(1) Section 91.501 does not apply.
(2) Section 91.503 does not apply. See Sec. 91.605.
(3) Section 91.506 does not apply. See Sec. 91.606.
(4) Section 91.507 does not apply. See Sec. 91.607.
(5) Section 91.508 does not apply.
(6) Paragraphs (d) and (e)(6)(v) and references to ``sample sizes,
N and n'' of Sec. 91.509 do not apply.
(7) The introductory text in Sec. 91.509 does not apply. The
following text applies:
``Within 5 working days after completion of testing of all engines
pursuant to a test order.''
(8) The introductory text of Sec. 91.509(e)(9) does not apply. The
following text applies:
The following signed statement and endorsement by an authorized
representative of the manufacturer:
This report is submitted pursuant to Sections 213 and 208 of the
Clean Air Act. This Selective Enforcement Audit was conducted in
complete conformance with all applicable regulations under 40 CFR
Part 91 et seq and the conditions of the test order. No emission-
related changes to production processes or quality control
procedures for the engine family tested have been made between
receipt of the test order and conclusion of the audit. All data and
information reported herein is, to the best of (Company Name)
knowledge, true and accurate. I am aware of the penalties associated
with violations of the Clean Air Act and the regulations thereunder.
(Authorized Company Representative.)
(9) Section 91.510 does not apply. See Sec. 91.608.
Sec. 91.604 Test orders.
(a) A test order addressed to the manufacturer is required for any
testing under this subpart.
(b) The test order is signed by the Assistant Administrator for Air
and Radiation or his or her designee. The test order must be delivered
in person by an EPA enforcement officer or EPA authorized
representative to a company representative or sent by registered mail,
return receipt requested, to the manufacturer's representative who
signed the application for certification submitted by the manufacturer,
pursuant to the requirements of the applicable section of subpart B of
this part. Upon receipt of a test order, the manufacturer must comply
with all of the provisions of this subpart and instructions in the test
order.
(c) Information included in test order. (1) The test order will
specify the engine family to be selected for testing, the
manufacturer's engine assembly plant or
[[Page 52155]]
associated storage facility or port facility (for imported engines)
from which the engines must be selected, the time and location at which
engines must be selected, and the procedure by which engines of the
specified family must be selected. The test order may specify the
configuration to be audited and/or the number of engines to be selected
per day. Engine manufacturers are required to select a minimum of four
engines per day unless an alternate selection procedure is approved
pursuant to Sec. 91.606(a), or unless total production of the specified
configuration is less than four engines per day. If total production of
the specified configuration is less than four engines per day, the
manufacturer selects the actual number of engines produced per day.
(2) The test order may include alternate families to be selected
for testing at the Administrator's discretion in the event that engines
of the specified family are not available for testing because those
engines are not being manufactured during the specified time or are not
being stored at the specified assembly plant, associated storage
facilities, or port of entry.
(3) If the specified family is not being manufactured at a rate of
at least two engines per day in the case of manufacturers specified in
40 CFR 89.607(g)(1), or one engine per day in the case of manufacturers
specified in 40 CFR 89.607(g)(2), over the expected duration of the
audit, the Assistant Administrator or her or his designated
representative may select engines of the alternate family for testing.
(4) In addition, the test order may include other directions or
information essential to the administration of the required testing.
(d) A manufacturer may submit a list of engine families and the
corresponding assembly plants, associated storage facilities, or (in
the case of imported engines) port facilities from which the
manufacturer prefers to have engines selected for testing in response
to a test order. In order that a manufacturer's preferred location be
considered for inclusion in a test order for a particular engine
family, the list must be submitted prior to issuance of the test order.
Notwithstanding the fact that a manufacturer has submitted the list,
the Administrator may order selection at other than a preferred
location.
(e) Upon receipt of a test order, a manufacturer must proceed in
accordance with the provisions of this subpart.
Sec. 91.605 Testing by the Administrator.
(a) The Administrator may require by test order under Sec. 91.604
that engines of a specified family be selected in a manner consistent
with the requirements of Sec. 91.606 and submitted to the Administrator
at the place designated for the purpose of conducting emission tests.
These tests will be conducted in accordance with Sec. 91.607 to
determine whether engines manufactured by the manufacturer conform with
the regulations with respect to which the certificate of conformity was
issued.
(b) Designating official data. (1) Whenever the Administrator
conducts a test on a test engine or the Administrator and manufacturer
each conduct a test on the same test engine, the results of the
Administrator's test comprise the official data for that engine.
(2) Whenever the manufacturer conducts all tests on a test engine,
the manufacturer's test data is accepted as the official data, provided
that if the Administrator makes a determination based on testing
conducted under paragraph (a) of this section that there is a
substantial lack of agreement between the manufacturer's test results
and the Administrator's test results, no manufacturer's test data from
the manufacturer's test facility will be accepted for purposes of this
subpart.
(c) If testing conducted under Sec. 91.604 is unacceptable under
paragraph (b)(2) of this section, the Administrator must:
(1) Notify the manufacturer in writing of the Administrator's
determination that the test facility is inappropriate for conducting
the tests required by this subpart and the reasons therefor; and
(2) Reinstate any manufacturer's data upon a showing by the
manufacturer that the data acquired under Sec. 91.604 was erroneous and
the manufacturer's data was correct.
(d) The manufacturer may request in writing that the Administrator
reconsider the determination in paragraph (b)(2) of this section based
on data or information which indicates that changes have been made to
the test facility and these changes have resolved the reasons for
disqualification.
Sec. 91.606 Sample selection.
(a) Engines comprising a test sample will be selected at the
location and in the manner specified in the test order. If a
manufacturer determines that the test engines cannot be selected in the
manner specified in the test order, an alternative selection procedure
may be employed, provided the manufacturer requests approval of the
alternative procedure prior to the start of test sample selection, and
the Administrator approves the procedure.
(b) The manufacturer must produce and assemble the test engines of
the family selected for testing using its normal production and
assembly process for engines to be distributed into commerce. If,
between the time the manufacturer is notified of a test order and the
time the manufacturer finishes selecting test engines, the manufacturer
implements any change(s) in its production or assembly processes,
including quality control, which may reasonably be expected to affect
the emissions of the engines selected, then the manufacturer must,
during the audit, inform the Administrator of such changes. If the test
engines are selected at a location where they do not have their
operational and emission control systems installed, the test order will
specify the manner and location for selection of components to complete
assembly of the engines. The manufacturer must assemble these
components onto the test engines using normal assembly and quality
control procedures as documented by the manufacturer.
(c) No quality control, testing, or assembly procedures will be
used on the test engine or any portion thereof, including parts and
subassemblies, that have not been or will not be used during the
production and assembly of all other engines of that family, unless the
Administrator approves the modification in production or assembly
procedures pursuant to paragraph (b) of this section.
(d) The test order may specify that an EPA enforcement officer(s)
or authorized representative(s), rather than the manufacturer, select
the test engines according to the method specified in the test order.
(e) The order in which test engines are selected determines the
order in which test results are to be used in applying the sampling
plan in accordance with Sec. 91.608.
(f) The manufacturer must keep on hand all untested engines, if
any, comprising the test sample until a pass or fail decision is
reached in accordance with Sec. 91.608(e). The manufacturer may ship
any tested engine which has not failed the requirements as set forth in
Sec. 91.608(b). However, once the manufacturer ships any test engine,
it relinquishes the prerogative to conduct retests as provided in
Sec. 91.607(i).
Sec. 91.607 Test procedures.
(a)(1) For marine SI engines subject to the provisions of this
subpart, the prescribed test procedures are the test
[[Page 52156]]
procedures as specified in subpart E of this part.
(2) The Administrator may, on the basis of a written application by
a manufacturer, prescribe test procedures other than those specified in
paragraph (a)(1) of this section for any marine engine he or she
determines is not susceptible to satisfactory testing using the
procedures specified in paragraph (a)(1) of this section.
(b)(1) The manufacturer may not adjust, repair, prepare, or modify
the engines selected for testing and may not perform any emission tests
on engines selected for testing pursuant to the test order unless this
adjustment, repair, preparation, modification, and/or tests are
documented in the manufacturer's engine assembly and inspection
procedures and are actually performed or unless these adjustments and/
or tests are required or permitted under this subpart or are approved
in advance by the Administrator.
(2) The Administrator may adjust or cause to be adjusted any engine
parameter which the Administrator has determined to be subject to
adjustment for certification and Selective Enforcement Audit testing in
accordance with Sec. 91.112, to any setting within the physically
adjustable range of that parameter, as determined by the Administrator
in accordance with Sec. 91.112, prior to the performance of any tests.
However, if the idle speed parameter is one which the Administrator has
determined to be subject to adjustment, the Administrator may not
adjust it to any setting which causes a lower engine idle speed than
would have been possible within the physically adjustable range of the
idle speed parameter if the manufacturer had accumulated 12 hours of
service on the engine under paragraph (c) of this section, all other
parameters being identically adjusted for the purpose of the
comparison. The manufacturer may be requested to supply information
needed to establish an alternate minimum idle speed. The Administrator,
in making or specifying these adjustments, may consider the effect of
the deviation from the manufacturer's recommended setting on emission
performance characteristics as well as the likelihood that similar
settings will occur on in-use engines. In determining likelihood, the
Administrator may consider factors such as, but not limited to, the
effect of the adjustment on engine performance characteristics and
information from similar in-use engines.
(c) Service Accumulation. Prior to performing exhaust emission
testing on an SEA test engine, the manufacturer may accumulate on each
engine a number of hours of service equal to the greater of 12 hours or
the number of hours the manufacturer accumulated during certification
on the emission data engine corresponding to the family specified in
the test order.
(1) Service accumulation must be performed in a manner using good
engineering judgment to obtain emission results representative of
normal production engines. This service accumulation must be consistent
with the new engine break-in instructions contained in the applicable
owner's manual.
(2) The manufacturer must accumulate service at a minimum rate of 6
hours per engine during each 24-hour period, unless otherwise approved
by the Administrator.
(i) The first 24-hour period for service begins as soon as
authorized checks, inspections, and preparations are completed on each
engine.
(ii) The minimum service accumulation rate does not apply on
weekends or holidays.
(iii) If the manufacturer's service or target is less than the
minimum rate specified (6 hours per day), then the minimum daily
accumulation rate is equal to the manufacturer's service target.
(3) Service accumulation must be completed on a sufficient number
of test engines during consecutive 24-hour periods to assure that the
number of engines tested per day fulfills the requirements of
paragraphs (g)(1) and (g)(2) of this section.
(d) The manufacturer may not perform any maintenance on test
engines after selection for testing, nor may the Administrator allow
deletion of any engine from the test sequence, unless requested by the
manufacturer and approved by the Administrator before any engine
maintenance or deletion.
(e) The manufacturer must expeditiously ship test engines from the
point of selection to the test facility. If the test facility is not
located at or in close proximity to the point of selection, the
manufacturer must assure that test engines arrive at the test facility
within 24 hours of selection. The Administrator may approve more time
for shipment based upon a request by the manufacturer accompanied by a
satisfactory justification.
(f) If an engine cannot complete the service accumulation or an
emission test because of a malfunction, the manufacturer may request
that the Administrator authorize either the repair of that engine or
its deletion from the test sequence.
(g) Whenever a manufacturer conducts testing pursuant to a test
order issued under this subpart, the manufacturer must notify the
Administrator within one working day of receipt of the test order as to
which test facility will be used to comply with the test order. If no
test cells are available at a desired facility, the manufacturer must
provide alternate testing capability satisfactory to the Administrator.
(1) A manufacturer with projected nonroad engine sales for the
United States market for the applicable year of 7,500 or greater must
complete emission testing at a minimum rate of two engines per 24-hour
period, including each voided test and each smoke test.
(2) A manufacturer with projected nonroad engine sales for the
United States market for the applicable year of less than 7,500 must
complete emission testing at a minimum rate of one engine per 24-hour
period, including each voided test and each smoke test.
(3) The Administrator may approve a lower daily rate of emission
testing based upon a request by a manufacturer accompanied by a
satisfactory justification.
(h) The manufacturer must perform test engine selection, shipping,
preparation, service accumulation, and testing in such a manner as to
assure that the audit is performed in an expeditious manner.
(i) Retesting. (1) The manufacturer may retest any engines tested
during a Selective Enforcement Audit once a fail decision for the audit
has been reached in accordance with Sec. 91.608(e).
(2) The Administrator may approve retesting at other times based
upon a request by the manufacturer accompanied by a satisfactory
justification.
(3) The manufacturer may retest each engine a total of three times.
The manufacturer must test each engine or vehicle the same number of
times. The manufacturer may accumulate additional service before
conducting a retest, subject to the provisions of paragraph (c) of this
section.
(j) A manufacturer must test engines with the test procedure
specified in subpart E of this part to demonstrate compliance with the
exhaust emission standard (or applicable FEL) for HC+NOX. If
alternate procedures were used in certification pursuant to
Sec. 91.119, then those alternate procedures must be used.
[[Page 52157]]
Sec. 91.608 Compliance with acceptable quality level and passing and
failing criteria for selective enforcement audits.
(a) The prescribed acceptable quality level is 40 percent.
(b) A failed engine is one whose final test results pursuant to
Sec. 91.509(b), for HC+NOX, exceed the applicable family emission
level.
(c) The manufacturer must test engines comprising the test sample
until a pass decision is reached for HC+NOX or a fail decision is
reached for HC+NOX. A pass decision is reached when the cumulative
number of failed engines, as defined in paragraph (b) of this section,
for HC+NOX is less than or equal to the pass decision number, as
defined in paragraph (d) of this section, appropriate to the cumulative
number of engines tested. A fail decision is reached when the
cumulative number of failed engines for HC+NOX is greater than or
equal to the fail decision number, as defined in paragraph (d) of this
section, appropriate to the cumulative number of engines tested.
(d) The pass and fail decision numbers associated with the
cumulative number of engines tested are determined by using the tables
in Appendix A to this subpart, ``Sampling Plans for Selective
Enforcement Auditing of Marine Engines,'' appropriate to the projected
sales as made by the manufacturer in its report to EPA under
Sec. 91.504(c)(1). In the tables in Appendix A to this subpart,
sampling plan ``stage'' refers to the cumulative number of engines
tested. Once a pass or fail decision has been made for HC+NOX, the
number of engines with final test results exceeding the emission
standard for HC+NOX shall not be considered any further for the
purposes of the audit.
(e) Passing or failing of an SEA occurs when the decision is made
on the last engine required to make a decision under paragraph (c) of
this section.
(f) The Administrator may terminate testing earlier than required
in paragraph (c) of this section.
Appendix A to Subpart G of Part 91--Sampling Plans for Selective
Enforcement Auditing of Marine Engines
Table 1.--Sampling Plan Code Letter
------------------------------------------------------------------------
Annual engine family sales Code letter
------------------------------------------------------------------------
20-50....................................... AA.1
120-99...................................... A.
100-299..................................... B.
300-299..................................... C.
500 or greater.............................. D.
------------------------------------------------------------------------
\1\ A manufacturer may optionally use either the sampling plan for code
letter ``AA'' or sampling plan for code letter ``A'' for Selective
Enforcement Audits of engine families with annual sales between 20 and
50 engines. Additionally, the manufacturer may switch between these
plans during the audit.
Table 2.--Sampling Plan for Code Letter ``AA''
[Sample inspection criteria]
------------------------------------------------------------------------
Stage Pass No. Fail No. Stage Pass No. Fail No.
------------------------------------------------------------------------
1.......... (1) (2) 11 4 8
2.......... (1) (2) 12 4 9
3.......... 0 (2) 13 5 9
4.......... 0 (2) 14 5 10
5.......... 1 5 15 6 10
6.......... 1 6 16 6 10
7.......... 2 6 17 7 10
8.......... 2 7 18 8 10
9.......... 3 7 19 8 10
10......... 3 8 20 9 10
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.
Table 3.--Sampling Plan for Code Letter ``A''
[Sample inspection criteria]
------------------------------------------------------------------------
Stage Pass No. Fail No. Stage Pass No. Fail No.
------------------------------------------------------------------------
1.......... (1) (2) 16 6 11
2.......... (1) (2) 17 7 12
3.......... (1) (2) 18 7 12
4.......... 0 (2) 19 8 13
5.......... 0 (2) 20 8 13
6.......... 1 6 21 9 14
7.......... 1 7 22 10 14
8.......... 2 7 23 10 15
9.......... 2 8 24 11 15
10......... 3 8 25 11 16
11......... 3 8 26 12 16
12......... 4 9 27 12 17
13......... 5 10 28 13 17
14......... 5 10 29 14 17
15......... 6 11 30 16 17
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.
Table 4.--Sampling Plan for Code Letter ``B''
[Sample inspection criteria]
------------------------------------------------------------------------
Stage Pass No. Fail No.
------------------------------------------------------------------------
1...................... (1) (2)
2...................... (1) (2)
3...................... (1) (2)
4...................... (1) (2)
5...................... 0 (2)
6...................... 1 6
7...................... 1 7
8...................... 2 7
9...................... 2 8
10..................... 3 8
11..................... 3 9
12..................... 4 9
13..................... 4 10
14..................... 5 10
15..................... 5 11
16..................... 6 12
17..................... 6 12
18..................... 7 13
19..................... 8 13
20..................... 8 14
21..................... 9 14
22..................... 9 15
23..................... 10 15
24..................... 10 16
25..................... 11 16
26..................... 11 17
27..................... 12 17
28..................... 12 18
29..................... 13 18
30..................... 13 19
31..................... 14 19
32..................... 14 20
33..................... 15 20
34..................... 16 21
35..................... 16 21
36..................... 17 22
37..................... 17 22
38..................... 18 22
39..................... 18 22
40..................... 21 22
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.
Table 5.--Sampling Plan for Code Letter ``C''
[Sample inspection criteria]
------------------------------------------------------------------------
Stage Pass No. Fail No.
------------------------------------------------------------------------
1...................... (\1\) (\2\)
2...................... (\1\) (\2\)
3...................... (\1\) (\2\)
4...................... (\1\) (\2\)
5...................... 0 (\2\)
6...................... 0 6
7...................... 1 7
8...................... 2 7
9...................... 2 8
10..................... 3 9
11..................... 3 9
12..................... 4 10
13..................... 4 10
14..................... 5 11
15..................... 5 11
16..................... 6 12
17..................... 6 12
18..................... 7 13
19..................... 7 13
20..................... 8 14
[[Page 52158]]
21..................... 8 14
22..................... 9 15
23..................... 10 15
24..................... 10 16
25..................... 11 16
26..................... 11 17
27..................... 12 17
28..................... 12 18
29..................... 13 18
30..................... 13 19
31..................... 14 19
32..................... 14 20
33..................... 15 20
34..................... 15 21
35..................... 16 21
36..................... 16 22
37..................... 17 22
38..................... 18 23
39..................... 18 23
40..................... 19 24
41..................... 19 24
42..................... 20 25
43..................... 20 25
44..................... 21 26
45..................... 21 27
46..................... 22 27
47..................... 22 27
48..................... 23 27
49..................... 23 27
50..................... 26 27
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.
Table 6.--Sampling Plan for Code Letter ``D''
[Sample inspection criteria]
------------------------------------------------------------------------
Stage Pass No. Fail No.
------------------------------------------------------------------------
1...................... (\1\) (\2\)
2...................... (\1\) (\2\)
3...................... (\1\) (\2\)
4...................... (\1\) (\2\)
5...................... 0 (\2\)
6...................... 0 6
7...................... 1 7
8...................... 2 8
9...................... 2 8
10..................... 3 9
11..................... 3 9
12..................... 4 10
13..................... 4 10
14..................... 5 11
15..................... 5 11
16..................... 6 12
17..................... 6 12
18..................... 7 13
19..................... 7 13
20..................... 8 14
21..................... 8 14
22..................... 9 15
23..................... 9 15
24..................... 10 16
25..................... 11 16
26..................... 11 17
27..................... 12 17
28..................... 12 18
29..................... 13 19
30..................... 13 19
31..................... 14 20
32..................... 14 20
33..................... 15 21
34..................... 15 21
35..................... 16 22
36..................... 16 22
37..................... 17 23
38..................... 17 23
39..................... 18 24
40..................... 18 24
41..................... 19 25
42..................... 19 26
43..................... 20 26
44..................... 21 27
45..................... 21 27
46..................... 22 28
47..................... 22 28
48..................... 23 29
49..................... 23 29
50..................... 24 30
51..................... 24 30
52..................... 25 31
53..................... 25 31
54..................... 26 32
55..................... 26 32
56..................... 27 33
57..................... 27 33
58..................... 28 33
59..................... 28 33
60..................... 32 33
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.
Subpart H--Importation of Nonconforming Marine Engines
Sec. 91.701 Applicability.
(a) Except where otherwise indicated, this subpart is applicable to
marine SI engines for which the Administrator has promulgated
regulations under this part prescribing emission standards, including
engines incorporated into marine vessels or equipment, that are offered
for importation or imported into the United States, but which engines,
at the time of importation or being offered for importation are not
covered by certificates of conformity issued under section 213 and
section 206(a) of the Clean Air Act as amended (that is, which are
nonconforming marine engines as defined in Sec. 91.702), and this part.
Compliance with regulations under this subpart does not relieve any
person or entity from compliance with other applicable provisions of
the Clean Air Act.
(b) Regulations prescribing further procedures for the importation
of marine SI engines and marine vessels or equipment into the customs
territory of the United States, as defined in 19 U.S.C. 1202, are set
forth in U.S. Customs Service regulations.
Sec. 91.702 Definitions.
The definitions in subpart A of this part apply to this subpart.
The following definitions also apply to this subpart.
Certificate of conformity. The document issued by the Administrator
under section 213 and section 206(a) of the Act.
Nonconforming marine engine. A marine SI engine which is not
covered by a certificate of conformity prior to importation or being
offered for importation (or for which such coverage has not been
adequately demonstrated to EPA). Also, a marine SI engine which was
originally covered by a certificate of conformity, but subsequently
altered or modified such that it is no longer in a certified
configuration.
Original engine manufacturer (OEM). The entity which originally
manufactured the marine engine.
United States. United States includes the customs territory of the
United States as defined in 19 U.S.C. 1202, and the Virgin Islands,
Guam, American Samoa, and the Commonwealth of the Northern Mariana
Islands.
Sec. 91.703 Admission.
(a) A nonconforming marine SI engine offered for importation may
only be imported into the United States under Sec. 91.704, provided
that an exemption or exclusion is granted by the Administrator. Final
admission shall not be granted unless the marine SI engine is exempted
or excluded under Sec. 91.704.
(b) In order to obtain admission the importer must submit to the
Administrator a written request for approval containing the following:
(1) Identification of the importer of the marine SI engine and the
importer's address, telephone number, and taxpayer identification
number;
(2) Identification of the marine SI engine owner, the owner's
address, telephone number, and taxpayer identification number;
(3) Identification of the marine SI engine including make, model,
identification number, and original production year;
(4) Information indicating under what provision of these
regulations the marine SI engine is to be imported;
(5) Identification of the place(s) where the subject marine SI
engine is to be stored;
(6) Authorization for EPA enforcement officers to conduct
inspections or testing otherwise
[[Page 52159]]
permitted by the Act or regulations thereunder; and
(7) Such other information as is deemed necessary by the
Administrator.
Sec. 91.704 Exemptions and exclusions.
(a) Individuals and businesses are eligible to import nonconforming
marine SI engines into the United States only under the provisions of
this section.
(b) Notwithstanding other requirements of this subpart, a
nonconforming marine SI engine entitled to one of the temporary
exemptions of this paragraph may be conditionally admitted into the
United States if prior written approval for the conditional admission
is obtained from the Administrator. Conditional admission must be under
bond. The Administrator may request that the U.S. Customs Service
require a specific bond amount to ensure compliance with the
requirements of the Act and this subpart. A written request for
approval from the Administrator must contain the identification
required in Sec. 91.703(b) and information that demonstrates that the
importer is entitled to the exemption. Noncompliance with provisions of
this section may result in the forfeiture of the total amount of the
bond or exportation of the marine engine. The following temporary
exemptions are permitted by this paragraph:
(1) Exemption for repairs or alterations. Upon written approval by
EPA, a person may conditionally import under bond a nonconforming
marine SI engine solely for purpose of repair(s) or alteration(s). The
marine SI engines may not be operated in the United States other than
for the sole purpose of repair or alteration. It may not be sold or
leased in the United States and must be exported upon completion of the
repair(s) or alteration(s).
(2) Testing exemption. A nonconforming test marine SI engine may be
conditionally imported under bond by a person subject to the
requirements of Sec. 91.1005. A test marine SI engine may be operated
in the United States provided that the operation is an integral part of
the test. This exemption is limited to a period not exceeding one year
from the date of importation unless a request is made by the
appropriate importer, and subsequently granted by EPA, concerning the
marine engine in accordance with Sec. 91.1005(f) for a subsequent one-
year period.
(3) Display exemptions. (i) A nonconforming marine engine intended
solely for display may be conditionally imported under bond subject to
the requirements of Sec. 91.1007.
(ii) A display marine engine may be imported by any person for
purposes related to a business or the public interest. Such purposes do
not include collections normally inaccessible or unavailable to the
public on a daily basis, display of a marine engine at a dealership,
private use, or other purpose that the Administrator determines is not
appropriate for display exemptions. A display marine engine may not be
sold or leased in the United States and may not be operated in the
United States except for the operation incident and necessary to the
display purpose.
(iii) A temporary display exemption is granted for 12 months or for
the duration of the display purpose, whichever is shorter. Extensions
of up to 12 months each are available upon approval by the
Administrator. In no circumstances, however, may the total period of
exemption exceed 36 months.
(c) Notwithstanding any other requirement of this subpart, a marine
SI engine may be finally admitted into the United States under this
paragraph if prior written approval for such final admission is
obtained from the Administrator. A request for approval is to contain
the identification information required in Sec. 91.703(b) (except for
Sec. 91.703(b)(5)) and information that demonstrates that the importer
is entitled to the exemption. The following exemptions are permitted by
this paragraph:
(1) National security exemption. A nonconforming marine engine may
be imported under the national security exemption found at
Sec. 91.1008.
(2) Exemption for marine engines identical to United States
certified versions. (i) Any person (including businesses) is eligible
for importing a nonconforming marine SI engine into the United States
under the provisions of this paragraph. An exemption will be granted if
the applicant demonstrates to the satisfaction of the Administrator
that the marine engine:
(A) Is owned by the importer;
(B) Is not offered for importation for the purpose of resale; and
(C) Is proven to be identical, in all material respects, to a
marine SI engine of the same or later model year certified by the
Original Engine Manufacturer for sale in the United States or is proven
to have been modified to be identical, in all material respects, to a
marine engine of the same or later model year certified by the OEM for
sale in the United States according to complete written instructions
provided by the OEM's United States representative, or his/her
designee.
(ii) Proof of conformity.
(A) Documentation submitted pursuant to this section for the
purpose of proving conformity of individual marine engines is to
contain sufficiently organized data or evidence demonstrating that the
marine engine identified pursuant to Sec. 91.703(b) is identical, in
all material respects, to a marine engine identified in an OEM's
application for certification.
(B) If the documentation does not contain all the information
required by this part, or is not sufficiently organized, EPA will
notify the importer of any areas of inadequacy and that the
documentation will not receive further consideration until the required
information or organization is provided.
(C) If EPA determines that the documentation does not clearly or
sufficiently demonstrate that a marine engine is eligible for
importation under this paragraph, EPA will notify the importer in
writing.
(D) If EPA determines that the documentation clearly and
sufficiently demonstrates that a marine engine is eligible for
importation under this paragraph, EPA will grant approval for final
admission in writing.
(d) Foreign diplomatic and military personnel may conditionally
import a nonconforming marine engine without bond. At the time of
conditional admission, the importer must submit to the Administrator
the written report required in Sec. 91.703(b) (except for information
required by Sec. 91.703(b)(5)) and a statement from the U.S. Department
of State confirming qualification for this exemption. Foreign military
personnel may, in lieu of a statement from the U.S. Department of
State, submit to the Administrator a copy of their orders for duty in
the United States. The marine SI engine may not be sold or leased in
the United States and must be exported if the individual's diplomatic
status or the foreign military orders for duty in the U.S. are no
longer applicable, as determined by the Department of State, unless
subsequently brought into conformity with U.S. emission requirements in
accordance with Sec. 91.704(c)(2).
(e) Competition exclusion. A nonconforming marine engine may be
conditionally imported by any person provided the importer demonstrates
to the Administrator that the marine engine is used to propel a marine
vessel used solely for competition and obtains prior written approval
from the Administrator. A nonconforming engine imported pursuant to
this paragraph may not be operated in the United States except for that
operation incident and necessary for the competition
[[Page 52160]]
purpose, unless subsequently brought into conformity with United States
emission requirements in accordance with Sec. 91.704(c)(2).
(f) An application for exemption and exclusion provided for in
paragraphs (b), (c), and (e) of this section shall be mailed to: U.S.
Environmental Protection Agency, Office of Mobile Sources, Engine
Programs & Compliance Division (6403-J), 401 M Street, SW., Washington,
DC 20460, Attention: Imports.
Sec. 91.705 Prohibited acts; penalties.
(a) The importation of a marine SI engine, including a marine
engine incorporated into marine vessels or equipment, which is not
covered by a certificate of conformity other than in accordance with
this subpart and the entry regulations of the U.S. Customs Service is
prohibited. Failure to comply with this section is a violation of
Sec. 91.1103(a)(1) and section 213(d) of the Act.
(b) Unless otherwise permitted by this subpart, during a period of
conditional admission, the importer of a marine engine may not:
(1) Register, license, or operate the marine engine in the United
States;
(2) Sell or lease or offer the marine engine for sale or lease;
(c) A marine SI engine conditionally admitted pursuant to
Sec. 91.704 (b), (d) or (e) and not granted final admission by the end
of the period of conditional admission, or within such additional time
as the Administrator and the U.S. Customs Service may allow, is deemed
to be unlawfully imported into the United States in violation of
Sec. 91.1103(a)(1), section 213(d) and section 203 of the Act, unless
the marine engine has been delivered to the U.S. Customs Service for
export or other disposition under applicable Customs laws and
regulations. A marine SI engine not so delivered is subject to seizure
by the U.S. Customs Service.
(d) An importer who violates Sec. 91.1103(a)(1), section 213(d) and
section 203 of the Act is subject to a civil penalty under Sec. 91.1106
and section 205 of the Act of not more than $25,000 for each marine
engine subject to the violation. In addition to the penalty provided in
the Act, where applicable, a person or entity who imports an engine
under the exemption provisions of Sec. 91.704(b) and, who fails to
deliver the marine engine to the U.S. Customs Service by the end of the
period of conditional admission is liable for liquidated damages in the
amount of the bond required by applicable Customs laws and regulations.
Sec. 91.706 Treatment of confidential information.
The provisions for treatment of confidential information as
described in Sec. 91.7 apply.
Subpart I--In-Use Testing and Recall Regulations
Sec. 91.801 Applicability.
The requirements of subpart I are applicable to all marine SI
engines subject to the provisions of subpart A of part 91.
(a) Marine engines subject to provisions of subpart B of this part
are subject to recall regulations specified in 40 CFR part 85, subpart
S, except for the items set forth in this subsection.
(b) Reference to section 214 of the Clean Air Act in 40 CFR
85.1801(a) does not apply. Reference to section 216 of the Clean Air
Act does apply.
(c) Reference to section 202 of the Act in 40 CFR 85.1802(a) does
not apply. Reference to section 213 of the Act does apply.
(d) Reference to ``family particulate emission limits as defined in
Part 86 promulgated under section 202 of the Act'' in 40 CFR 85.1803(a)
and 85.1805(a)(1) does not apply. Family emission limits as defined in
40 CFR part 89 promulgated under section 213 of the Act does apply.
(e) Add the following paragraph to 40 CFR 85.1805 (a)(9): A
te
FR Doc. 96-23063 Control of Air Pollution; Final Rule for New Gasoline Spark- Ignition Marine Engines; Exemptions for New Nonroad Compression- Ignition Engines at or Above 37 Kilowatts and New Nonroad Spark- Ignition Engines at or Below 19 Kilowatts
lephone number provided by the manufacturer, which may be used to
report difficulty in obtaining recall repairs.
(f) The requirements of the Manufacturer In-use testing program set
forth in Secs. 91.803 through 91.805 are waived for existing technology
OB/PWC as defined in Sec. 91.3 through model year 2003.
(1) The Administrator has the discretion to waive the requirements
of the Manufacturer In-use testing program set forth in sections 91.803
through 91.805 for existing technology OB/PWC for a specific engine
family up to model year 2005 if, upon the request of the manufacturer,
the Administrator determines that the engine family will be phased out
of U.S. production by model year 2005. As a condition to receiving such
a waiver for either model year 2004 or 2005 or both, the manufacturer
must discontinue U.S. production according to the schedule upon which
the Administrator based the waiver. Failure to do so by the
manufacturer will void ab initio the certificate of conformity.
(2) A manufacturer request under paragraph (f)(1) of this section
must be in writing and must apply to a specific engine family. The
request must identify the engine family designation, the schedule for
phasing the engine family out of U.S. production, and any other
information the Administrator may require.
Sec. 91.802 Definitions.
(a) For the purposes of this subpart, except as otherwise provided,
the definitions in subpart A of this part apply to this subpart.
(b) The definitions of 40 CFR Part 85, subpart S, Sec. 85.1801 also
apply to this Part.
Sec. 91.803 Manufacturer In-use testing program.
(a) EPA shall annually identify engine families and those
configurations within families which the manufacturer must then subject
to in-use testing as described below. For each model year, EPA may
identify a number of engine families that is no greater than twenty-
five percent of the number of engine families to which this subpart is
applicable produced in that model year.
(b) For each engine family identified by EPA, engine manufacturers
shall perform emission testing of an appropriate sample of in-use
engines from each engine family. Manufacturers shall submit data from
this in-use testing to EPA.
(c) Number of engines to be tested. An engine manufacturer shall
test in-use engines from each engine family identified by EPA. Engines
to be tested shall have accumulated between half and three-quarters of
the family's useful life. The number of engines to be tested by a
manufacturer will be determined by the following method:
(1) A minimum of four (4) engines per family provided that no
engine fails any standard. For each failing engine, two more engines
shall be tested until the total number of engines equals ten (10).
(2) For engine families of less than 500 engines for the identified
model year or for engine manufacturers who make less than or equal to
2,000 for that model year, a minimum of two (2) engines per family
provided that no engine fails any standard. For each failing engine,
two more engines shall be tested until the total number of engines
equals ten (10).
(3) If an engine family was certified using carry over emission
data and has been previously tested under paragraph (c) (1) or (2) of
this section (and EPA has not ordered a recall for that family), then
only one engine for that family must be tested. If that one engine
fails any pollutant, testing must be conducted as outlined at paragraph
(c) (1) or (2) of this section, whichever is appropriate.
[[Page 52161]]
(d) At the discretion of the Administrator, an engine manufacturer
may test more engines than the minima described in paragraph (c) of
this section or may concede failure before testing a total of ten (10)
engines.
(e) The Administrator will consider failure rates, average emission
levels and the existence of any defects among other factors in
determining whether to pursue remedial action under this subpart. The
Administrator may order a recall pursuant to Secs. 91.807-91.814 before
testing reaches the tenth engine.
(f) The Administrator may approve an alternative to manufacturer
in-use testing, where:
(1) engine family production is less than or equal to 200 per year;
or
(2) engines cannot be obtained for testing because they are used
substantially in craft which are not conducive to engine removal such
as large vessels where the engine can not be removed without
dismantling either the engine or the vessel; or
(3) other compelling circumstances associated with the structure of
the industry and uniqueness of marine engine applications. Such
alternatives shall be designed to determine whether the engine family
is in compliance in-use.
(g) Collection of in-use engines. The engine manufacturer shall
procure in-use engines which have been operated for between half and
three-quarters of the engine's useful life. The engine manufacturer may
test engines from more than one model year in a given year. The
manufacturer shall begin testing within twelve calendar months after
receiving notice that EPA has identified a particular engine family for
testing and shall complete testing of such engine family within twelve
calendar months from the start of such testing. Test engines may be
procured from sources associated with the engine manufacturer (i.e.,
manufacturer established fleet engines, etc.) or from sources not
associated with the manufacturer (i.e., consumer-owned engines,
independently-owned fleet engines, etc.).
Sec. 91.804 Maintenance, procurement and testing of in-use engines.
(a) A test engine must have a maintenance and use history
representative of actual in-use conditions.
(1) To comply with this requirement a manufacturer must obtain
information from the end users regarding the accumulated usage,
maintenance, operating conditions, and storage of the test engines.
(2) Documents used in the procurement process must be maintained as
required in Sec. 91.121.
(b) The manufacturer may perform minimal set-to-spec maintenance on
components of a test engine that are not subject to parameter
adjustment. Maintenance may include only that which is listed in the
owner's instructions for engines with the amount of service and age of
the acquired test engine. Documentation of all maintenance and
adjustments shall be maintained and retained as required by
Sec. 91.121.
(c) At least one valid emission test, according to the test
procedure outlined in subpart E of this part, is required for each in-
use engine.
(d) The Administrator may waive portions or requirements of the
test procedure, if any, that are not necessary to determine in-use
compliance.
(e) If a selected in-use engine fails to comply with any applicable
emission standards, the manufacturer shall determine the reason for
noncompliance. The manufacturer must report all such reasons of
noncompliance within fifteen days of completion of testing.
Sec. 91.805 In-use test program reporting requirements.
(a) The manufacturer shall electronically submit to the
Administrator within three (3) months of completion of testing all
emission testing results generated from the in-use testing program. The
following information must be reported for each test engine:
(1) Engine family,
(2) Model,
(3) Engine serial number,
(4) Date of manufacture,
(5) Estimated hours of use,
(6) Date and time of each test attempt,
(7) Results (if any) of each test attempt,
(8) Results of all emission testing,
(9) Summary of all maintenance and/or adjustments performed,
(10) Summary of all modifications and/or repairs,
(11) Determinations of noncompliance.
(b) The manufacturer must electronically submit the results of its
in-use testing with a pre-approved information heading. The
Administrator may exempt manufacturers from this requirement upon
written request with supporting justification.
(c) All testing reports and requests for approvals made under this
subpart shall be addressed to: Manager, Engine Compliance Programs
Group 6403-J, U.S. Environmental Protection Agency, 401 M Street SW.,
Washington, DC 20460.
(d) The Administrator may approve and/or require modifications to a
manufacturer's in-use testing programs.
Sec. 91.806 Voluntary emissions recall.
(a) Prior to an EPA ordered recall, the manufacturer may perform a
voluntary emissions recall pursuant to regulations at Sec. 91.904 of
this part. Such manufacturer is subject to the reporting requirements
at Sec. 91.905 of this part.
(b) Once EPA determines that a substantial number of engines fail
to conform with the requirements of section 213 of the Act or this
part, the manufacturer will not have the option of a voluntary
emissions recall.
Subpart J--Emission-related Defect Reporting Requirements,
Voluntary Emission Recall Program
Sec. 91.901 Applicability.
The requirements of this subpart J are applicable to all marine
engines subject to the provisions of subpart A of this part 91. The
requirement to report emission-related defects affecting a given class
or category of engines remains applicable for five years from the end
of the model year in which such engines were manufactured.
Sec. 91.902 Definitions.
The definitions in subpart A of this part apply to this subpart.
Sec. 91.903 Applicability to Part 85, subpart T.
(a) Marine SI engines subject to provisions of subpart A of this
part are subject to emission defect reporting requirements specified in
40 CFR Part 85, subpart T, except for the items set forth in this
section.
(b) 40 CFR 85.1901 does not apply. See Sec. 91.901.
(c) Reference to the Clean Air Act, 42 U.S.C. 1857 in 40 CFR
85.1902(a) does not apply. Reference to the Clean Air Act, 42 U.S.C.
7401 does apply.
(d) Reference to the ``approved Application for Certification
required by 40 CFR 86.077-22 and like provisions of Part 85 and Part 86
of Title 40 of the Code of Federal Regulations'' does not apply.
Reference to the approved application for certification required by
91.108 and like provisions of Part 91 does apply.
(e) Reference to section 202(d) of the Act in Sec. 85.1902(c) does
not apply. Reference to section 202(d) and section 213 of the Act does
apply.
(f) Reference to section 214 of the Act in Sec. 85.1902(e) and (f)
does not apply. Reference to section 216 of the Act does apply.
[[Page 52162]]
Sec. 91.904 Voluntary emission recall.
(a) A manufacturer, prior to initiating a voluntary emission recall
program, must submit to the EPA the following information for a 15 day
review and comment period:
(1) A description of each class or category of engines recalled,
including the number of engines to be recalled, the model year, and
such other information as may be required to identify the engines
recalled;
(2) A description of the specific modifications, alterations,
repairs, corrections, adjustments, or other changes to be made to
correct the engines affected by the emission-related defect;
(3) A description of the method by which the manufacturer will
notify engine owners including copies of any letters of notification to
be sent to engine owners;
(4) A description of the proper maintenance or use, if any, upon
which the manufacturer conditions eligibility for repair under the
recall plan, and a description of the proof to be required of an engine
owner to demonstrate compliance with any such conditions;
(5) A description of the procedure to be followed by engine owners
to obtain correction of the nonconformity. This may include designation
of the date on or after which the owner can have the nonconformity
remedied, the time reasonably necessary to perform the labor to remedy
the defect, and the designation of facilities at which the defect can
be remedied;
(6) A description of the class of persons other than dealers and
authorized warranty agents of the manufacturer who will remedy the
defect; and
(7) A description of the system by which the manufacturer will
assure that an adequate supply of parts is available to perform the
repair under the plan.
(b) The manufacturer must submit at least one report on the
progress of the recall campaign. This report is submitted one year from
the date notification begins and includes the following information:
(1) The methods used to notify both engine owners, dealers and
other individuals involved in the recall campaign;
(2) The number of engines known or estimated to be affected by the
emission-related defect and an explanation of the means by which this
number was determined;
(3) The number of engines actually receiving repair under the plan;
(4) The number of engine owners, dealers, and other individuals
involved in the recall campaign that have been notified and the number
of engines that have actually received repair; and
(5) The number of engines determined to be ineligible for remedial
action due to a failure to properly maintain or use such engines.
Sec. 91.905 Reports, voluntary recall plan filing, record retention.
(a) The defect report, voluntary recall plan, and the voluntary
recall progress report shall be sent to: Manager, Engine Compliance
Programs Group 6403-J, Environmental Protection Agency, 401 M St. SW,
Washington, DC 20460.
(b) The information gathered by the manufacturer to compile the
reports must be retained for not less than five years from the date of
the manufacture of the engines and must be made available to duly
authorized officials of the EPA upon request.
Sec. 91.906 Responsibility under other legal provisions preserved.
The filing of any report under the provisions of this subpart will
not affect a manufacturer's responsibility to file reports or
applications, obtain approval, or give notice under any provision of
law.
Sec. 91.907 Disclaimer of production warranty applicability.
(a) The act of filing an Emission Defect Information Report is
inconclusive as to the existence of a defect subject to the warranty
provided by section 207(a) of the Act.
(b) A manufacturer may include on each page of its Emission Defect
Information Report a disclaimer stating that the filing of a Defect
Information Report pursuant to these regulations is not conclusive as
to the applicability of the warranty provided by subpart M of this
part.
Subpart K--Exclusion and Exemption of Marine SI Engines
Sec. 91.1001 Applicability.
The requirements of this subpart K are applicable to all marine
spark-ignition propulsion engines subject to the provisions of subpart
A of this part 91.
Sec. 91.1002 Definitions.
The definitions in subpart A of this part apply to this subpart.
The following definitions also apply to this subpart:
Exemption means exemption from the prohibitions of Sec. 91.1103.
Export exemption means an exemption granted under Sec. 91.1104(b)
for the purpose of exporting new marine SI engines.
National security exemption means an exemption which may be granted
under Sec. 91.1104(b) for the purpose of national security.
Manufacturer-owned marine engine means an uncertified marine SI
engine owned and controlled by a marine SI engine manufacturer and used
in a manner not involving lease or sale by itself or in a marine vessel
or piece of equipment employed from year to year in the ordinary course
of business for product development, production method assessment, or
market promotion purposes.
Testing exemption means an exemption which may be granted under
Sec. 91.1104(b) for the purpose of research, investigations, studies,
demonstrations or training, but not including national security.
Sec. 91.1003 Exclusions based on section 216(10) of the Act.
(a) For the purpose of determining the applicability of section
216(10) of the Act, any marine SI engine as that term is defined in
subpart A of this part, is deemed a nonroad engine.
(b) EPA will maintain a list of models of marine SI engines, and
the marine vessels which use such engines, that have been determined to
be excluded because they are used solely for competition. This list
will be available to the public and may be obtained by writing to the
following address: Group Manager, Engine Compliance Programs Group,
Engine Programs and Compliance Division (6403J), Environmental
Protection Agency, 401 M Street SW, Washington, DC 20460.
(c) Upon written request with supporting documentation, EPA will
make written determinations as to whether certain engines are or are
not marine SI engines. Engines that are determined not to be marine SI
engines are excluded from regulations under this part but may be
subject to regulations under another part.
Sec. 91.1004 Who may request an exemption.
(a) Any person may request a testing exemption under Sec. 91.1005.
(b) Any marine SI engine manufacturer may request a national
security exemption under Sec. 91.1008.
(c) For marine SI engine manufacturers, marine SI engines for
export purposes are exempt without application, subject to the
provisions of Sec. 91.1009.
(d) For eligible manufacturers, as determined by Sec. 91.1006,
manufacturer-owned marine SI engines are exempt without application,
subject to the provisions of Sec. 91.1006.
(e) For any person, display marine SI engines are exempt without
application, subject to the provisions of Sec. 91.1007.
[[Page 52163]]
Sec. 91.1005 Testing exemption.
(a) Any person requesting a testing exemption must demonstrate the
following:
(1) That the proposed test program has a purpose which constitutes
an appropriate basis for an exemption in accordance with
Sec. 91.1104(b);
(2) That the proposed test program necessitates the granting of an
exemption;
(3) That the proposed test program is reasonable in scope; and
(4) That the proposed test program exhibits a degree of control
consonant with the purpose of the program and the EPA's monitoring
requirements.
(5) Paragraphs (b), (c), (d), and (e) of this section describe what
constitutes a sufficient demonstration for each of the four identified
elements.
(b) With respect to the purpose of the proposed test program, an
appropriate purpose would be research, investigations, studies,
demonstrations, or training, but not national security. A concise
statement of purpose is a required item of information.
(c) With respect to the necessity that an exemption be granted,
necessity arises from an inability to achieve the stated purpose in a
practicable manner without performing or causing to be performed one or
more of the prohibited acts under Sec. 91.1103. In appropriate
circumstances, time constraints may be a sufficient basis for
necessity, but the cost of certification alone, in the absence of
extraordinary circumstances, is not a basis for necessity.
(d) With respect to reasonableness, a test program must exhibit a
duration of reasonable length and affect a reasonable number of
engines. In this regard, required items of information include:
(1) An estimate of the program's duration.
(2) The maximum number of marine engines involved.
(e) With respect to control, the test program must incorporate
procedures consistent with the purpose of the test and be capable of
affording EPA monitoring capability. As a minimum, required items of
information include:
(1) The technical nature of the test;
(2) The site of the test;
(3) The duration and accumulated engine operation associated with
the test;
(4) The ownership arrangement with regard to the engines involved
in the test;
(5) The intended final disposition of the engines;
(6) The manner in which the engine identification numbers will be
identified, recorded, and made available; and
(7) The means or procedure whereby test results will be recorded.
(f) A manufacturer of new marine SI engines may request a testing
exemption to cover marine SI engines intended for use in test programs
planned or anticipated over the course of a subsequent one-year period.
Unless otherwise required by the Manager, Engine Compliance Programs
Group, a manufacturer requesting such an exemption need only furnish
the information required by paragraphs (a)(1) and (d)(2) of this
section along with a description of the recordkeeping and control
procedures that will be employed to assure that the engines are used
for purposes consistent with section 91.1104(b).
Sec. 91.1006 Manufacturer-owned exemption and precertification
exemption.
(a) Except as provided in paragraph (b) of this section, any
manufacturer-owned marine SI engine, as defined by Sec. 91.1002, is
exempt from compliance with Sec. 91.1103, without application, if the
manufacturer complies with the following terms and conditions:
(1) The manufacturer must establish, maintain, and retain the
following adequately organized and indexed information on each exempted
engine:
(i) engine identification number,
(ii) use of the engine on exempt status and
(iii) final disposition of any engine removed from exempt status.
(2) The manufacturer must provide right of entry and access to
these records to EPA authorized representatives as outlined in
Sec. 91.505.
(3) Unless the requirement is waived or an alternative procedure is
approved by the Director, Engine Programs & Compliance Division, the
manufacturer must permanently affix a label to each marine engine on
exempt status. This label should:
(i) Be affixed in a readily visible portion of the engine,
(ii) Be attached in such a manner that it cannot be removed without
destruction or defacement,
(iii) State in the English language/and in block letters and
numerals of a color that contrasts with the background of the label,
the following information:
(A) The label heading ``Emission Control Information;''
(B) Full corporate name and trademark of manufacturer;
(C) Engine displacement, engine family identification, and model
year of engine; or person or office to be contacted for further
information about the engine;
(D) The statement ``This marine SI engine is exempt from the
prohibitions of 40 CFR 91.1103.''
(4) No provision of paragraph (a)(3) of this section prevents a
manufacturer from including any other information it desires on the
label.
Sec. 91.1007 Display exemption.
An uncertified marine SI engine is a display engine when it is to
be used solely for display purposes, will only be operated incident and
necessary to the display purpose, and will not be sold unless an
applicable certificate of conformity has been received or the engine
has been finally admitted pursuant to subpart H of this part. A display
engine is exempt without application.
Sec. 91.1008 National security exemption.
(a)(1) Any marine SI engine, otherwise subject to this part, which
is used in a vessel that exhibits substantial features ordinarily
associated with military combat such as armor and/or permanently
affixed weaponry and which will be owned and/or used by an agency of
the federal government with responsibility for national defense, will
be exempt from these regulations for purposes of national security. No
request for exemption is necessary.
(2) Manufacturers may request a national security exemption for any
marine SI engine, otherwise subject to this part, which does not meet
the conditions described in paragraph (a)(1) of this section. A
manufacturer requesting a national security exemption must state the
purpose for which the exemption is required and the request must be
endorsed by an agency of the federal government charged with
responsibility for national defense.
(b) EPA will maintain a list of models of marine SI engines (and
the vessels which use them) that have been granted a national security
exemption under paragraph (a)(2) of this section. This list will be
available to the public and may be obtained by writing to the following
address: Manager, Engine Compliance Programs Group 6403-J,
Environmental Protection Agency, 401 M Street SW, Washington, DC 20460.
Sec. 91.1009 Export exemptions.
(a) A new marine SI engine intended solely for export, and so
labeled or tagged on the outside of the container and on the engine
itself, is subject to the provisions of Sec. 91.1103, unless the
importing country has emission standards for new marine engines which
differ from EPA standards.
(b) For the purpose of paragraph (a) of this section, a country
having no standards, whatsoever, is deemed to be
[[Page 52164]]
a country having emission standards which differ from EPA standards.
(c) EPA will maintain a list of foreign countries that have in
force marine SI emission standards identical to U.S. EPA standards and
have so notified EPA. This list may be obtained by writing to the
following address: Manager, Engine Compliance Programs Group 6403-J,
Environmental Protection Agency, 401 M Street, SW., Washington, DC.
20460. New marine SI engines exported to such countries must comply
with EPA certification regulations.
(d) It is a condition of any exemption for the purpose of export
under Sec. 91.1004(b) that such exemption be void ab initio with
respect to a new marine SI engine intended solely for export if such
marine SI engine is sold, or offered for sale, to an ultimate purchaser
in the United States for purposes other than export.
Sec. 91.1010 Granting of exemptions.
(a) If upon completion of the review of an exemption request made
pursuant to Sec. 91.1005 or Sec. 91.1008, EPA determines it is
appropriate to grant such an exemption, a memorandum of exemption will
be prepared and submitted to the person requesting the exemption. The
memorandum shall set forth the basis for the exemption, its scope, and
such terms and conditions as are deemed necessary. Such terms and
conditions shall generally include, but are not limited to, agreements
by the applicant to conduct the exempt activity in the manner described
to EPA, create and maintain adequate records accessible to EPA at
reasonable times, employ labels for the exempt engines setting forth
the nature of the exemption, take appropriate measures to assure that
the terms of the exemption are met, and advise EPA of the termination
of the activity and the ultimate disposition of the engines.
(b) Any exemption granted pursuant to paragraph (a) of this section
is deemed to cover any subject engine only to the extent that the
specified terms and conditions are complied with. A breach of any term
or condition causes the exemption to be void ab initio with respect to
any engine. Consequently, the causing or the performing of an act
prohibited under Sec. 91.1103(a) (1) or (3), other than in strict
conformity with all terms and conditions of this exemption renders the
person to whom the exemption is granted, and any other person to whom
the provisions of Sec. 91.1103 are applicable, liable under sections
204 and 205 of the Act.
Sec. 91.1011 Submission of exemption requests.
Requests for exemption or further information concerning exemptions
and/or the exemption request review procedure should be addressed to:
Manager, Engine Compliance Programs Group 6403J, Environmental
Protection Agency, 401 M Street, SW., Washington, DC 20460.
Sec. 91.1012 Treatment of confidential information.
The provisions for treatment of confidential information described
in Sec. 91.7 apply to this subpart.
Subpart L--Prohibited Acts and General Enforcement Provisions
Sec. 91.1101 Applicability.
The requirements of subpart L are applicable to all marine engines
and vessels subject to the provisions of subpart A of this part 91.
Sec. 91.1102 Definitions.
The definitions in subpart A of this part apply to this subpart.
All terms not defined herein or in subpart A have the meaning given
them in the Act.
Sec. 91.1103 Prohibited acts.
(a) The following acts and the causing thereof are prohibited:
(1)(i) In the case of a manufacturer of new marine SI engines or
vessels for distribution in commerce, the sale, the offering for sale,
or the introduction, or delivery for introduction, into commerce, of
any new marine SI engine manufactured after the applicable effective
date under this part unless such engine is covered by a certificate of
conformity issued (and in effect) under regulations found in this part.
(ii) In the case of any person, except as provided by regulation of
the Administrator, the importation into the United States of any new
marine SI engine manufactured after the applicable effective date under
this part unless such engine is covered by a certificate of conformity
issued (and in effect) under regulations found in this part.
(2)(i) For a person to fail or refuse to permit access to or
copying of records or to fail to make reports or provide information
required under Sec. 91.1104.
(ii) For a person to fail or refuse to permit entry, testing or
inspection authorized under Sec. 91.118, 91.505 or 91.1104.
(iii) For a person to fail or refuse to perform tests, or to have
tests performed as required under Sec. 91.118 or Sec. 91.1104.
(iv) For a person to fail to establish or maintain records as
required under Sec. 91.1104.
(3)(i) For a person to remove or render inoperative a device or
element of design installed on or in a marine engine in compliance with
regulations under this part prior to its sale and delivery to the
ultimate purchaser, or for a person knowingly to remove or render
inoperative such a device or element of design after the sale and
delivery to the ultimate purchaser; or
(ii) For a person to manufacture, sell or offer to sell, or
install, a part or component intended for use with, or as part of, a
marine SI engine, where a principal effect of the part or component is
to bypass, defeat, or render inoperative a device or element of design
installed on or in a marine SI engine in compliance with regulations
issued under this part, and where the person knows or should know that
the part or component is being offered for sale or installed for this
use or put to such use.
(4) For a manufacturer of a new marine SI engine subject to
standards prescribed under this part:
(i) To sell, offer for sale, or introduce or deliver into commerce,
a marine SI engine unless the manufacturer has complied with the
requirements of Sec. 91.1203.
(ii) To sell, offer for sale, or introduce or deliver into
commerce, a marine SI engine unless a label or tag is affixed to the
engine in accordance with regulations under this part.
(iii) To provide directly or indirectly in any communication to the
ultimate purchaser or a subsequent purchaser that the coverage of a
warranty under the Act is conditioned upon use of a part, component, or
system manufactured by the manufacturer or a person acting for the
manufacturer or under its control, or conditioned upon service
performed by such persons, except as provided in subpart M of this
part.
(iv) To fail or refuse to comply with the terms and conditions of
the warranty under subpart M of this part.
(5) For a manufacturer of new marine vessels or equipment to
distribute in commerce, sell, offer for sale, or introduce into
commerce, marine vessels or equipment which contain an engine not
covered by a certificate of conformity.
(b) For the purposes of enforcement of this part, the following
apply:
(1) Nothing in paragraph (a) of this section is to be construed to
require the use of manufacturer parts in maintaining or repairing a
marine SI engine.
(2) Actions for the purpose of repair or replacement of a device or
element of design or any other item are not
[[Page 52165]]
considered prohibited acts under Sec. 91.1103(a) if the actions are a
necessary and temporary procedure, the device or element is replaced
upon completion of the procedure, and the action results in the proper
functioning of the device or element of design.
(3) Actions for the purpose of a conversion of a marine SI engine
for use of a clean alternative fuel (as defined in Title II of the Act)
are not considered prohibited acts under Sec. 91.1103(a) if:
(i) The engine complies with the applicable standard when operating
on the alternative fuel, and the device or element is replaced upon
completion of the conversion procedure, and
(ii) In the case of engines converted to dual fuel or flexible use,
the action results in proper functioning of the device or element when
the marine SI engine operates on conventional fuel.
Sec. 91.1104 General enforcement provisions.
(a) Information collection provisions. (1) Every manufacturer of
new marine SI engines and other persons subject to the requirements of
this part must establish and maintain records, perform tests where such
testing is not otherwise reasonably available under this part, make
reports and provide information the Administrator may reasonably
require to determine whether the manufacturer or other person has acted
or is acting in compliance with this part or to otherwise carry out the
provisions of this part, and must, upon request of an officer or
employee duly designated by the Administrator, permit the officer or
employee at reasonable times to have access to and copy such records.
(2) For purposes of enforcement of this part, an officer or
employee duly designated by the Administrator, upon presenting
appropriate credentials, is authorized:
(i) To enter, at reasonable times, any establishment of the
manufacturer, or of any person whom the manufacturer engaged to perform
any activity required under paragraph (a)(1) of this section, for the
purposes of inspecting or observing any activity conducted pursuant to
paragraph (a)(1) of this section, and
(ii) To inspect records, files, papers, processes, controls, and
facilities used in performing an activity required by paragraph (a)(1)
of this section, by the manufacturer or by a person whom the
manufacturer engaged to perform the activity.
(b) Exemption provision. The Administrator may exempt a new marine
engine from compliance with Sec. 91.1103 upon such terms and conditions
as the Administrator may find necessary for the purpose of export,
research, investigations, studies, demonstrations, or training, or for
reasons of national security.
(c) Importation provision. (1) A new marine SI engine, or vessel
offered for importation or imported by a person in violation of
Sec. 91.1103 shall be refused admission into the United States, but the
Secretary of the Treasury and the Administrator may, by joint
regulation, provide for deferring a final determination as to admission
and authorizing the delivery of such a marine SI engine offered for
import to the owner or consignee thereof upon such terms and conditions
(including the furnishing of a bond) as may appear to them appropriate
to insure that the marine SI engine will be brought into conformity
with the standards, requirements, and limitations applicable to it
under this part.
(2) If a marine SI engine is finally refused admission under this
paragraph, the Secretary of the Treasury shall cause disposition
thereof in accordance with the customs laws unless it is exported,
under regulations prescribed by the Secretary, within 90 days of the
date of notice of the refusal or additional time as may be permitted
pursuant to the regulations.
(3) Disposition in accordance with the customs laws may not be made
in such manner as may result, directly or indirectly, in the sale, to
the ultimate consumer, of a new marine SI engine that fails to comply
with applicable standards of the Administrator under this part.
(d) Export provision. A new marine SI engine intended solely for
export, and so labeled or tagged on the outside of the container and on
the engine itself, shall be subject to the provisions of Sec. 91.1103,
except that if the country that is to receive the engine has emission
standards that differ from the standards prescribed under subpart B of
this part, then the engine must comply with the standards of the
country that is to receive the engine.
Sec. 91.1105 Injunction proceedings for prohibited acts.
(a) The district courts of the United States have jurisdiction to
restrain violations of Sec. 91.1103.
(b) Actions to restrain such violations must be brought by and in
the name of the United States. In an action, subpoenas for witnesses
who are required to attend a district court in any district may run
into any other district.
Sec. 91.1106 Penalties.
(a) Violations. A violation of the requirements of this subpart is
a violation of the applicable provisions of the Act, including sections
203 and 213(d), and is subject to the penalty provisions thereunder.
(1) A person who violates Sec. 91.1103 (a)(1), (a)(4), or (a)(5),
or a manufacturer or dealer who violates Sec. 91.1103(a)(3)(i), is
subject to a civil penalty of not more than $25,000 for each violation.
(2) A person other than a manufacturer or dealer who violates
Sec. 91.1103(a)(3)(i) or any person who violates Sec. 91.1103(a)(3)(ii)
is subject to a civil penalty of not more than $2,500 for each
violation.
(3) A violation with respect to Sec. 91.1103 (a)(1), (a)(3)(i),
(a)(4), or (a)(5) constitutes a separate offense with respect to each
marine SI engine.
(4) A violation with respect to Sec. 91.1103(a)(3)(ii) constitutes
a separate offense with respect to each part or component. Each day of
a violation with respect to Sec. 91.1103(a)(6) constitutes a separate
offense.
(5) A person who violates Sec. 91.1103 (a)(2) or (a)(6) is subject
to a civil penalty of not more than $25,000 per day of violation.
(b) Civil actions. The Administrator may commence a civil action to
assess and recover any civil penalty under paragraph (a) of this
section.
(1) An action under this paragraph may be brought in the district
court of the United States for the district in which the violation is
alleged to have occurred or in which the defendant resides or has the
Administrator's principal place of business, and the court shall have
jurisdiction to assess a civil penalty.
(2) In determining the amount of a civil penalty to be assessed
under this paragraph, the court is to take into account the gravity of
the violation, the economic benefit or savings (if any) resulting from
the violation, the size of the violator's business, the violator's
history of compliance with Title II of the Act, action taken to remedy
the violation, the effect of the penalty on the violator's ability to
continue in business, and such other matters as justice may require.
(3) In any such action, subpoenas for witnesses who are required to
attend a district court in any district may run into any other
district.
(c) Administrative assessment of certain penalties.--(1)
Administrative penalty authority. In lieu of commencing a civil action
under paragraph (b) of this section, the Administrator shall assess any
civil penalty prescribed in paragraph (a) of this section, except that
the maximum amount of penalty sought against each violator in a penalty
assessment proceeding can not exceed $200,000,
[[Page 52166]]
unless the Administrator and the Attorney General jointly determine
that a matter involving a larger penalty amount is appropriate for
administrative penalty assessment. Any such determination by the
Administrator and the Attorney General is not subject to judicial
review. Assessment of a civil penalty is made by an order made on the
record after opportunity for a hearing held in accordance with the
procedures found at part 22 of this chapter. The Administrator may
compromise, or remit, with or without conditions, any administrative
penalty which may be imposed under this section.
(2) Determining amount. In determining the amount of any civil
penalty assessed under this subsection, the Administrator is to take
into account the gravity of the violation, the economic benefit or
savings (if any) resulting from the violation, the size of the
violator's business, the violator's history of compliance with Title II
of the Act, action taken to remedy the violation, the effect of the
penalty on the violator's ability to continue in business, and such
other matters as justice may require.
(3) Effect of administrator's action. (i) Action by the
Administrator under this paragraph does not affect or limit the
Administrator's authority to enforce any provisions of this part;
except that any violation with respect to which the Administrator has
commenced and is diligently prosecuting an action under this part, or
for which the Administrator has issued a final order not subject to
further judicial review and for which the violator has paid a penalty
assessment under this part may not be the subject of a civil penalty
action under paragraph (b) of this section.
(ii) No action by the Administrator under this part affects a
person's obligation to comply with a section of this part.
(4) Finality of order. An order issued under this subsection is to
become final 30 days after its issuance unless a petition for judicial
review is filed under paragraph (c)(5) of this section.
(5) Judicial review. (i) A person against whom a civil penalty is
assessed in accordance with this subsection may seek review of the
assessment in the United States District Court for the District of
Columbia or for the district in which the violation is alleged to have
occurred, in which such person resides, or where the person's principle
place of business is located, within the 30-day period beginning on the
date a civil penalty order is issued. The person must simultaneously
send a copy of the filing by certified mail to the Administrator and
the Attorney General.
(ii) The Administrator must file in the court within 30 days a
certified copy, or certified index, as appropriate, of the record on
which the order was issued. The court is not to set aside or remand any
order issued in accordance with the requirements of this paragraph
unless substantial evidence does not exist in the record, taken as a
whole, to support the finding of a violation or unless the
Administrator's assessment of the penalty constitutes an abuse of
discretion, and the court is not to impose additional civil penalties
unless the Administrator's assessment of the penalty constitutes an
abuse of discretion. In any proceedings, the United States may seek to
recover civil penalties assessed under this section.
(6) Collection. (i) If any person fails to pay an assessment of a
civil penalty imposed by the Administrator as provided in this part
after the order making the assessment has become final or after a court
in an action brought under paragraph (c)(5) of this section has entered
a final judgment in favor of the Administrator, the Administrator is to
request that the Attorney General bring a civil action in an
appropriate district court to recover the amount assessed (plus
interest at rates established pursuant to section 6621(a)(2) of the
Internal Revenue Code of 1986 from the date of the final order or the
date of final judgment, as the case may be). In such an action, the
validity, amount, and appropriateness of the penalty is not subject to
review.
(ii) A person who fails to pay on a timely basis the amount of an
assessment of a civil penalty as described in paragraph (c)(6)(i) of
this section is required to pay, in addition to that amount and
interest, the United States' enforcement expenses, including attorney's
fees and costs for collection proceedings, and a quarterly nonpayment
penalty for each quarter during which the failure to pay persists. The
nonpayment penalty is an amount equal to 10 percent of the aggregate
amount of that person's penalties and nonpayment penalties which are
unpaid as of the beginning of such quarter.
Sec. 91.1107 Warranty provisions.
(a) The manufacturer of each marine SI engine must warrant to the
ultimate purchaser and each subsequent purchaser that the engine is
designed, built, and equipped so as to conform at the time of sale with
applicable regulations under section 213 of the Act, and is free from
defects in materials and workmanship which cause such engine to fail to
conform with applicable regulations for its warranty period (as
determined under Sec. 91.1203).
(b) In the case of an engine part, the manufacturer or rebuilder of
the part may certify according to Sec. 85.2112 of this chapter that use
of the part will not result in a failure of the engine to comply with
emission standards promulgated in this part.
(c) For the purposes of this section, the owner of any engine
warranted under this part is responsible for the proper maintenance of
the engine. Proper maintenance includes replacement and service, at the
owner's expense at a service establishment or facility of the owner's
choosing, such items as spark plugs, points, condensers, and any other
part, item, or device related to emission control (but not designed for
emission control) under the terms of the last sentence of section
207(a)(3) of the Act, unless such part, item, or device is covered by
any warranty not mandated by this Act.
Sec. 91.1108 In-use compliance provisions.
(a) Effective with respect to marine engine and vessels
manufactured during model years 1997 and after:
(1) If the Administrator determines that a substantial number of
any class or category of engines, although properly maintained and
used, do not conform to the regulations prescribed under section 213 of
the Act when in actual use throughout their useful life (as defined
under Sec. 91.105(a)), the Administrator shall immediately notify the
manufacturer of such nonconformity and require the manufacturer to
submit a plan for remedying the nonconformity of the engines with
respect to which such notification is given.
(i) The manufacturer's plan shall provide that the nonconformity of
any such engines which are properly used and maintained will be
remedied at the expense of the manufacturer.
(ii) If the manufacturer disagrees with such determination of
nonconformity and so advises the Administrator, the Administrator shall
afford the manufacturer and other interested persons an opportunity to
present their views and evidence in support thereof at a public
hearing. Unless, as a result of such hearing, the Administrator
withdraws such determination of nonconformity, the Administrator shall,
within 60 days after the completion of such hearing, order the
manufacturer to provide prompt notification of such nonconformity in
accordance with paragraph (a)(2) of this section. The manufacturer
shall comply in all respects with the requirements of subpart I of this
part.
[[Page 52167]]
(2) Any notification required to be given by the manufacturer under
paragraph (a)(1) of this section with respect to any class or category
of engines shall be given to dealers, ultimate purchasers, and
subsequent purchasers (if known) in such manner and containing such
information as required in subparts I and J of this part.
(3)(i) The manufacturer shall furnish with each new engine written
instructions for the proper maintenance and use of the engine by the
ultimate purchaser as required under Sec. 91.1204. The manufacturer
shall provide in boldface type on the first page of the written
maintenance instructions notice that maintenance, replacement, or
repair of the emission control devices and systems may be performed by
any engine repair establishment or individual using any engine part
which has been certified as provided in Sec. 91.1107(b).
(ii) The instruction under paragraph (a)(3)(i) of this section must
not include any condition on the ultimate purchaser's using, in
connection with such engine, any component or service (other than a
component or service provided without charge under the terms of the
purchase agreement) which is identified by brand, trade, or corporate
name. Subject instructions also must not directly or indirectly
distinguish between service performed by the franchised dealers of such
manufacturer, or any other service establishments with which such
manufacturer has a commercial relationship, and service performed by
independent engine repair facilities with which such manufacturer has
no commercial relationship.
(iii) The prohibition of paragraph (a)(3)(ii) of this section may
be waived by the Administrator if:
(A) The manufacturer satisfies the Administrator that the engine
will function properly only if the component or service so identified
is used in connection with such engine, and
(B) The Administrator finds that such a waiver is in the public
interest.
(iv) In addition, the manufacturer shall indicate by means of a
label or tag permanently affixed to the engine that the engine is
covered by a certificate of conformity issued for the purpose of
assuring achievement of emission standards prescribed under section 213
of the Act. This label or tag shall also contain information relating
to control of emissions as prescribed under Sec. 91.113.
(b) The manufacturer bears all cost obligation a dealer incurs as a
result of a requirement imposed by paragraph (a) of this section. The
transfer of any such cost obligation from a manufacturer to a dealer
through franchise or other agreement is prohibited.
(c) If a manufacturer includes in an advertisement a statement
respecting the cost or value of emission control devices or systems,
the manufacturer shall set forth in the statement the cost or value
attributed to these devices or systems by the Secretary of Labor
(through the Bureau of Labor Statistics). The Secretary of Labor, and
his or her representatives, has the same access for this purpose to the
books, documents, papers, and records of a manufacturer as the
Comptroller General has to those of a recipient of assistance for
purposes of section 311 of the Act.
(d) Any inspection of a engine for purposes of paragraph (a)(1) of
this section, after its sale to the ultimate purchaser, is to be made
only if the owner of such vehicle or engine voluntarily permits such
inspection to be made, except as may be provided by any state or local
inspection program.
Subpart M--Emission Warranty and Maintenance Instructions
Sec. 91.1201 Applicability.
The requirements of this subpart M are applicable to all engines
subject to the provisions of subpart A of this part 91.
Sec. 91.1202 Definitions.
The definitions of subpart A of this part apply to this subpart.
Sec. 91.1203 Emission warranty, warranty period.
(a) Warranties imposed by this subpart shall be phased in according
to the following schedule.
(1) For model years 1998-2000, and for MY 1997 engine families
certified pursuant to Sec. 91.205, all emission related components
shall be warranted for a period of one year of engine use.
(2) For model years 2001-2003:
(i) Emission related components shall be warranted for a period of
one year of engine use.
(ii) Specified major emission control components shall be warranted
for a period of three years or 200 hours of engine use, whichever
occurs first.
(3) For model years 2004 and beyond:
(i) Emission-related components shall be warranted for a period of
two years or 200 hours of engine use, whichever occurs first.
(ii) Specified major emission control components shall be warranted
for a period of three years or 200 hours of engine use, whichever
occurs first.
(b) The manufacturer of each new marine SI engine must warrant to
the ultimate purchaser and each subsequent purchaser, that the engine
is designed, built, and equipped so as to conform at the time of sale
with applicable regulations under section 213 of the Act, and the
engine is free from defects in materials and workmanship which cause
such engine to fail to conform with applicable regulations for its
warranty period.
(c) In the case of a marine SI engine part, the manufacturer or
rebuilder of the part may certify according to Sec. 85.2112 ot this
chapter that use of the part will not result in a failure of the engine
to comply with emission standards promulgated in this part.
(d) For the purposes of this section, the owner of any marine SI
engine warranted under this part is responsible for the proper
maintenance of the engine as stated in the manufacturer's written
instructions. Proper maintenance generally includes replacement and
service, at the owner's expense at a service establishment or facility
of the owner's choosing, such items as spark plugs, points, condensers,
and any other part, item, or device related to emission control (but
not designed for emission control) under the terms of the last sentence
of section 207(a)(3) of the Act, unless such part, item, or device is
covered by any warranty not mandated by this Act.
Sec. 91.1204 Furnishing of maintenance and use instructions to
ultimate purchaser.
(a) The manufacturer must furnish or cause to be furnished to the
ultimate purchaser of each new marine SI engine written instructions
for the maintenance and use needed to assure proper functioning of the
emission control system.
(b) The manufacturer must provide in boldface type on the first
page of the written maintenance instructions notice that maintenance,
replacement, or repair of the emission control devices and systems may
be performed by any marine SI engine repair establishment or
individual.
(c) The instructions under paragraph (a) of this section will not
include any condition on the ultimate purchaser's using, in connection
with such engine, any component or service (other than a component or
service provided without charge under the terms of the purchase
agreement) which is identified by brand, trade, or corporate name. Such
instructions also will not directly or indirectly distinguish between
service performed by the franchised dealers of such manufacturer or any
other service establishments with which such manufacturer has a
commercial relationship and service performed by independent marine
engine repair
[[Page 52168]]
facilities which such manufacturer has no commercial relationship.
(d) The prohibition of paragraph (c) of this section may be waived
by the Administrator if:
(1) The manufacturer satisfies the Administrator that the engine
will function properly only if the component or service so identified
is used in connection with such engine, and
(2) The Administrator finds that such a waiver is in the public
interest.
Subpart N--In-Use Credit Program for New Marine Engines
Sec. 91.1301 Applicability.
Marine SI engines subject to the provisions of subpart A of this
part 91 are eligible to participate in the in-use credit program
described in this subpart.
Sec. 91.1302 Definitions.
The definitions in subpart A of this part apply to this subpart.
The following definitions shall also apply to this subpart:
Averaging means the exchange of marine engine in-use emission
credits among engine families within a given manufacturer's product
line.
Banking means the retention of marine engine in-use emission
credits by the manufacturer generating the emission credits for use in
future model year averaging or trading as permitted by these
regulations.
Carry-over engine family means an engine family which undergoes
certification using carryover test data from previous model years. See
Sec. 91.118(c).
Emission credits or in-use credits represent the amount of emission
reduction or exceedance, for each regulated pollutant, by a marine
engine family below or above, respectively, the applicable
certification family emission limit (FEL) to which the engine family is
certified. Emission reductions below the FEL are considered ``positive
credits,'' while emission exceedances above the FEL are considered
``negative or required credits.''
Banked credits refer to positive emission credits based on actual
applicable production/sales volume as contained in the end of model
year in-use testing reports submitted to EPA. Some or all of these
banked credits may be revoked if EPA review of the end of model year
in-use testing reports or any subsequent audit action(s) uncovers
problems or errors.
Trading means the exchange of marine SI engine in-use emission
credits between manufacturers and/or brokers.
Compliance level for an engine family is determined by averaging
the in-use test results from each engine.
Sec. 91.1303 General provisions.
(a) The in-use credit program for eligible marine engines is
described in this subpart. Participation in this program is voluntary.
(b) A marine SI engine family is eligible to participate in the in-
use credit program if it is subject to regulation under subpart B of
this part with certain exceptions specified in paragraph (c) of this
section.
(c) Marine SI engines may not participate in the in-use averaging,
banking, and trading program if they are delivered to a ``point of
first retail sale'' outside of the U.S., as defined in Sec. 91.202.
(d) Credits generated and used in the marine engine certification
averaging, banking, and trading program pursuant to the provisions of
subpart C of this part are not interchangeable with credits generated
and used in the marine engine in-use credit program.
(e) An engine family with a compliance level, as determined by in-
use testing pursuant to subpart I of this part and paragraph (h) of
this section, below the applicable FEL to which the engine family is
certified may generate emission credits for averaging, banking, or
trading in the in-use credit program.
(f) Positive credits generated in a given model year may be used in
that model year and/or in any subsequent model year.
(g) A manufacturer of an engine family with a compliance level
exceeding the applicable FEL to which the engine family is certified,
may, prior to the date of the report required under paragraph (j) of
this section use previously banked credits, purchase credits from
another manufacturer, or perform additional testing pursuant to
paragraph (i) of this section to address (as calculated elsewhere in
this subpart) the associated credit deficit (negative credits or a need
for credits).
(h) A manufacturer may carry-over an in-use credit deficit up to
and including model year 2003. Beginning with model year 2004, all
manufacturers must have a zero or positive credit balance.
(i) A manufacturer must notify EPA of plans to test additional
engine families beyond the maximum 25% required in subpart I of this
part for the in-use testing program. Such notice must be submitted 30
days prior to initiation of service accumulation. EPA may approve, with
adequate justification, the use of an existing fleet for additional
testing. If the additional testing discovers an engine family to be in
noncompliance with the applicable FEL, the testing must be treated as
if it were a failure of the normal in-use testing requirement of an
engine family.
(j) Manufacturers must demonstrate a zero or positive credit
balance under the in-use credit program for a particular model year
within 90 days of the end of the in-use testing of that model year's
engine families, or at the same time as the final certification AB&T
report (required under Sec. 91.210), whichever is later.
Sec. 91.1304 Averaging.
(a) A manufacturer may use averaging across engine families to
demonstrate a zero or positive credit balance for a model year.
Positive credits to be used in averaging may be obtained from credits
generated by another engine family of the same model year, credits
banked in previous model years, or credits obtained through trading.
(b) Beginning in model year 2004, credits used to demonstrate a
zero or positive credit balance must be used at a rate of 1.1 to 1.
Sec. 91.1305 Banking.
(a) A manufacturer of a marine SI engine family with an in-use
compliance level below the applicable FEL to which the engine family is
certified for a given model year may bank positive in-use credits for
that model year for use in in-use averaging and trading.
(b) A manufacturer may consider credits banked 30 days after the
submission of the report required by Sec. 91.1309(a). During the 30 day
period EPA will work with the manufacturer to correct any error in
calculating banked credits, if necessary.
Sec. 91.1306 Trading.
(a) A marine engine manufacturer may exchange positive in-use
emission credits with other marine engine manufacturers through
trading.
(b) In-use credits for trading can be obtained from credits banked
for model years prior to the model year of the engine family requiring
in-use credits.
(c) Traded in-use credits can be used for averaging, banking, or
further trading transactions.
(d) Unless otherwise approved by EPA, a manufacturer that generates
positive in-use credits must wait 30 days after it has both completed
in-use testing for the model year for which the credits were generated
and submitted the report required by Sec. 91.1309(a) before it may
transfer credits to another manufacturer or broker.
(e) In the event of a negative credit balance resulting from a
transaction,
[[Page 52169]]
both the buyer and the seller are liable, except in cases involving
fraud. Engine families participating in a negative trade may be subject
to recall under subpart I of this part.
Sec. 91.1307 Credit calculation.
For each participating engine family, emission credits (positive or
negative) are to be calculated according to the following equation and
rounded, in accordance with ASTM E29-93a, to the nearest gram. ASTM
E29-93a has been incorporated by reference. See Sec. 91.6. Consistent
units are to be used throughout the equation. The following equation is
used to determine the credit status for an engine family whether
generating positive or negative in-use emission credits:
[GRAPHIC] [TIFF OMITTED] TR04OC96.053
Where:
S(t)=cumulative fraction survived at time t;
life=average useful life in years, specific to the power
rating and the application as given below.
[GRAPHIC] [TIFF OMITTED] TR04OC96.055
Power=the average power of an engine family in kW (sales weighted). The
power of each configuration is the rated output in kilowatts as
determined by SAE J1228. This procedure has been incorporated by
reference. See Sec. 91.6.
t=time in model years
max useful life=maximum useful life specific to the power rating and
the application; max useful life = 2life
sales = the number of eligible sales tracked to the point of first
retail sale in the U.S. for the given engine family during the model
year.
FEL=the family emission limit for the engine family in grams per
kilowatt hour.
CL=compliance level of the in-use testing in g/kW-hr.
use=mean use in hours per year. For outboard engines,
use=34.8 hrs /yr. For personal watercraft,
use=77.3 hrs/yr;
AF=adjustment factor for the number of tests conducted
No. eng. tested......................... 2*, 4 6 8 10
Adjustment factor....................... .5 .75 .9 1
------------------------------------------------------------------------
* Small volume manufacturer
Sec. 91.1308 Maintenance of records.
(a) Any manufacturer that is participating in the in-use credit
program set forth in this subpart shall establish, maintain, and retain
the records required by Sec. 91.209 with respect to its participation
in the in-use credit program.
(b) EPA may void ab initio a certificate of conformity for an
engine family for which the manufacturer fails to retain the records
required under this section or to provide such information to the
Administrator upon request.
Sec. 91.1309 Reporting requirements.
(a) Any manufacturer who participates in the in-use credit program
is required to submit an end of the model year in-use testing report
either within 90 days of the end of the model year in-use testing of a
given model year's engine families, or at the same time as the final
certification AB&T report (required under Sec. 91.210), whichever is
later. The end of the model year in-use testing report must contain the
required information and show the calculated credits from all the in-
use testing conducted by the manufacturer for a given model year.
(b) Reports shall be submitted to: Manager, Engine Compliance
Programs Group 6403-J, U.S. Environmental Protection Agency, 401 M
Street, SW., Washington, DC 20460.
(c) A manufacturer that fails to submit a timely report as required
in paragraph (a) of this section will be considered to not have
participated in the in-use credit program.
(d) If EPA or the manufacturer determines that a reporting error
occurred on an end of model year report previously submitted to EPA
under this subpart, or an engine family in-use testing report submitted
to EPA under subpart I, the manufacturer's credits and credit
calculations will be recalculated. Erroneous positive credits will be
void. Erroneous negative credits may be adjusted by EPA. An update of
previously submitted ``point of first retail sale'' information is not
considered an error and no increase in the number of credits will be
allowed unless an actual error occurred in the calculation of credits
due to an error in the ``point of first retail sale'' information from
the time of the original end of model year report.
Sec. 91.1310 Notice of opportunity for hearing.
Any voiding of an engine family's certificate of conformity under
Sec. 91.1308(b) of this subpart will occur only after the manufacturer
concerned has been offered an opportunity for a hearing conducted in
accordance with Sec. Sec. 91.512, 91.513, 91.514 and 91.515.
[FR Doc. 96-23063 Filed 10-3-96; 8:45 am]
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