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Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Proposed Rules6387program that is more suitable for theirannual production volumes.EPA has taken a different approach inthe locomotive production line testingprogram: This program implements amore flexibly organized testing regimethat acts as a quality control methodthat manufacturers will utilize andmonitor to assure compliance.Manufacturers will continue to takesteps to produce engines withinstatistical tolerances and assurecompliance aided by the quality controldata generated by PLT which willidentify poor quality in real time.In the proposed PLT program, theAdministrator could suspend or revokethe manufacturer’s certificate ofconformity in whole or in part fifteendays after an EPA noncompliancedetermination for an engine family thatfails the PLT, or if the locomotivemanufacturer’s submittal reveals thatthe PLT tests were not performed inaccordance with the applicable testingprocedure. During the fifteen day periodfollowing a determination ofnoncompliance, EPA would coordinatewith the manufacturer to facilitate theapproval of the required production lineremedy in order to eliminate the needto halt production, to the greatest extentpossible. The manufacturer must thenaddress (i.e., bring into compliance,remove from service, etc.) thelocomotives produced prior to thesuspension or revocation of thecertificate of conformity. EPA couldreinstate the certificate of conformitysubsequent to a suspension, or reissueone subsequent to a revocation, after themanufacturer demonstrates (through itsPLT program) that improvements,modifications, or replacement hadbrought the locomotive and/or enginefamily into compliance. The proposedregulations include hearing provisionswhich provide a mechanism to resolvedisputes between EPA andmanufacturers regarding a suspension orrevocation decision based onnoncompliance with the PLT. It isimportant to point out that the Agencywould retain the legal authority toinspect and test locomotives andlocomotive engines should suchproblems arise in the PLT program.The Agency requests comment on allaspects of this proposed PLT program.Specifically, EPA requests comment onwhether it should select the individuallocomotives to be tested, or whether thisshould be done by the manufacturer,with the selection subject to EPAapproval. Also, the Agency requestscomment on whether manufacturerswhich only manufacture locomotiveengines (rather than completelocomotives) and whose engines only gotoward the repowering of existinglocomotives should be allowed to doPLT testing on locomotive engines, asproposed, or whether such enginesshould be required to be installed inlocomotives prior to PLT testing.Comments in support of requiringtesting of a locomotive in this situationshould address logistical issues such ashow much mileage should be allowed inorder to get the locomotive to a suitabletesting site.During the development of today’sproposal, the locomotive andlocomotive engine manufacturersdeveloped an alternative PLT program.Citing cost and time concerns withrunning a PLT program based on the full<strong>federal</strong> test procedure (FTP), as justdescribed, they proposed a programbased on a short test. This short testwould only test locomotives at notchesfive and eight, rather than at all notchesas in the full FTP. It would also utilizeless accurate measurement equipment,and would not require the same level oftraining for those running the test as theproposed FTP would. EPA solicitspublic comment on this approach, andparticularly on the liability that wouldbe associated with a failure of such ashort test, and whether the Agencycould take appropriate enforcementaction based on failure of a productionline test which is different than the testused for initial certification. The Agencyalso requests commenters to addresswhether a less rigorous PLT programwould be appropriate in light of a strongin-use testing program.The Agency is proposing a separateprogram for assuring the productionquality of remanufactured locomotives.Under this proposed program, thecertificate holder, as a condition of thecertificate, would be required to auditits remanufacture of locomotives for theuse of the proper parts, their properinstallation, and all proper calibrationsas a condition of the certificate ofconformity. The certificate holderwould be required to perform theseaudits on 5% of its annual production.For certificate holders which sell theirkits for installation by others, the auditswould be required to be spread outproportionally among every entityinstalling them. The Agency recognizesthat it may be difficult for aremanufacturer to audit kit installationsfrom a variety of installers locatedthroughout the country. Thus, EPA isproposing to allow a remanufacturedlocomotive subject to an audit to operateup to 10,000 miles prior to the audit.This will allow for audits at sites otherthan where the installation occurs, aswell as providing the flexibility in thetiming of the audits (i.e., not having toaudit a locomotive the moment itcompletes remanufacture). A case ofuninstalled, misinstalled, misadjustedor incorrect parts would constitute afailure, and additional locomotiveswould be required to be audited.Actions in the event of an audit failurewould be determined on a case-by-casebasis, depending on whether the failureis considered tampering, causing oftampering, inappropriate parts in kit,etc. EPA would retain the right to order,on a case-by-case basis, a PLT testingprogram for remanufacturedlocomotives in the same manner as thePLT program for freshly manufacturedlocomotives if in-use testing or kitaudits showed evidence ofnoncompliance. EPA requests commenton the impacts of this proposed auditprogram for remanufacturedlocomotives on small businesses, andwhether it should consider anexemption from this requirement forsmall businesses.C.4. In-Use Testing ProgramA critical element in the success ofthe proposed locomotive program isensuring that manufacturers,remanufacturers, and upgraders producenew locomotives that continue to meetemission standards beyond certificationand production stages, during actualoperation and use. EPA is proposing toadopt an in-use testing programpursuant to the Agency’s authority toimplement and enforce the locomotiveemissions standards, and pursuant to itsauthority to collect information fromentities subject to the Act’srequirements.EPA believes that the best way toensure that the in-use emissionsreductions expected to result fromimplementation of today’s proposedstandards are actually achieved is toperform in-use testing on a number oflocomotives every year. This isespecially important in the absence ofan upfront durability showing. TheAgency is proposing an in-usecompliance program with two distinctcomponents. EPA is first proposing aprogram to be performed by themanufacturers and remanufacturersaimed primarily at testing locomotivesfrom all engine families under the fullFTP. Second, the Agency is proposing torequire that Class I railroads annuallytest 10 percent of their locomotiveswhich have met or exceeded their usefullives using a modified version of theFTP, as discussed in the test proceduressection. The purpose of this secondcomponent is to assure that locomotiveuseful life periods are appropriate andto assure states that locomotives arecontinuing to meet applicable emissions
6388 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Proposed Rulesstandards for the time period duringwhich certain state standards arepreempted beyond useful life, asdescribed later in this notice. Each ofthese two components of the proposedin-use testing program are discussed inmore detail in the following paragraphs.The first major component of theproposed in-use testing programincludes requirements that apply tomanufacturers and remanufacturers.EPA is proposing to requiremanufacturers and remanufacturers totest emissions from in-use locomotivespursuant to its authority under section208 of the Act. This provision applies tothe locomotive and locomotive engineemissions standards as provided insection 213(d). Section 208 requiresmanufacturers to submit informationand conduct tests that EPA mayreasonably require to determine whethersuch manufacturer is in compliancewith Title II of the Act and itsimplementing regulations, or tootherwise carry out the provisions ofTitle II. The proposed testing program isdesigned to minimize the burden onindustry, while providing a strongincentive for manufacturers andremanufacturers to build engines thatmeet standards beyond the certificationand production stages, when in actualuse.Under the proposed in-use testingscheme, manufacturers andremanufacturers will be required to testin-use locomotives from one enginefamily per year, using the full FTP. TheAgency is proposing one engine familyper year in order to limit the testingburden on manufacturers andremanufacturers. EPA will specify theengine family to be tested each year,with selection based on criteria such asproduction quantity, past emissionperformance (including performance inthe proposed railroad test program), andengine and emission control technology.All in-use testing is proposed to beperformed on locomotives, with noallowances for engine testing (except forengines used for repowering, and thenonly after locomotive testing has beenperformed). In order to limit the testingburden for small engine families, the inusetesting requirement would not applyto engine families with production ofless than ten locomotives per year,except where there is evidence of in-usefailures. EPA will providemanufacturers and remanufacturerssuitable advance notice about whichengine families are to be tested in anygiven year. EPA would have theauthority to waive this in-use testingrequirement for a given manufacturer orremanufacturer based on evidence ofconsistent in-use compliance. Thiswaiver would not be available for amanufacturer or remanufacturer that hasnot yet demonstrated the durability ofeach of its engine families (i.e., has oneor more engine families that have notbeen tested in-use), or if there isevidence, from railroad or other testing,that one of its engine families may notbe complying in-use. EPA expects thatafter this program has been in place forseveral years, the in-use testing burdenwill be much smaller, as long as in-usefailures were very infrequent.The Agency is proposing that alllocomotives tested under themanufacturer and remanufacturer in-usetesting program will have reached atleast 75 percent of their useful lives.While testing of locomotives will belimited to between 75 and 100 percentof their useful lives, actual repair in theevent of a determination ofnoncompliance under section 207(c) ofthe Act, however, would not be limitedby useful life. For example, compliancetesting of an engine family might belimited to 75 to 100 percent of its usefullife; however, any resulting remedyrepair would be required to be appliedto all locomotives of that family,regardless of whether the locomotiveshad exceeded their useful lives. This isconsistent with EPA’s recall policy foron-highway vehicles and engines andlarge compression-ignition nonroadengines. 15 Further, EPA proposes that itmay require that any remedy in theevent of a nonconformity extend tolocomotives of the same engine family,but different model years, that werecertified using the proposedcertification carry over provisions. Suchan extension of the remedy to othermodel years is proposed to be limited totwo model years before and one modelyear after the model year of thenonconforming engine family. Such aprovision would thus limit the liabilityin the event of a nonconformity to fourmodel years’ production.Under EPA’s proposed testingprogram, a manufacturer orremanufacturer would be required totest in-use locomotives from an enginefamily specified by EPA when thatfamily reached an appropriate age. TheAgency is proposing that an appropriateage to begin in-use testing would be 75percent of a locomotive’s useful life.EPA has chosen 75 percent of useful lifein order to balance the need toaccurately assess in-use emissionsperformance, which argues for testinglate in useful life, with the desire tomaximize the benefits of any remedialaction in the event of an in-use failure,15 See Center for Auto Safety v. EPA, 747 F.2d 1[D.C. Cir. 1984].which argues for testing earlier in usefullife. The in-use test program is intendedto assess in-use emissions deterioration,not production quality (which isassessed in the production line testingprogram). Thus, it is most appropriate totest later in a locomotive’s useful life,rather than earlier, to ensure that testresults reflect actual in-usedeterioration, which tends to increasewith age. However, testing too late maypresent two problems. First, the later inuseful life the testing is done, the moredifficult it may be to find wellmaintainedlocomotives to test, sincemany may be remanufactured before theend of useful life. Second, testingextremely late in useful life wouldminimize the benefits achieved fromany remedial action taken in the eventan in-use nonconformity is identified.Thus, EPA believes that testing at 75percent of useful life strikes a balancebetween these different issues. EPArequests comment on whether a lowerage or range (e.g., 50 to 75 percent ofuseful life) would be more appropriatefor such testing, including commenters’reasons for suggesting different ages.To achieve the Agency’s goal ofestablishing a strong enforcementprogram while minimizing the burdenon manufacturers, EPA is proposing asampling process for the selection oflocomotives for in-use testing which isdesigned to provide adequate data forthe Agency to use as a basis forcompliance decisions, while expeditingtesting of engine families found to emitbelow the standard. This proposedselection process to achieve this goal isdescribed in the following paragraphs.The number of locomotives of atargeted family to be tested by amanufacturer or remanufacturer wouldbe determined by the following method:1. A minimum of two locomotives peryear for the specified family after itreaches the minimum age specified,provided that no locomotive fails anystandard. For each failing locomotive,two more locomotives would be testedup to a maximum of 10 locomotivestested.2. If the following conditions are met,only one locomotive per family per yearmust be tested: (1) The engine familyhas been previously tested under step 1above; (2) the engine family has notchanged significantly from thepreviously tested family (i.e., has beencertified using carryover emission data);and (3) EPA has not informed themanufacturer of an emission concernwith that family. If that locomotive failsfor any pollutant, testing must beconducted as outlined in step 1 above,up to a maximum of ten locomotives.
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