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Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Proposed Rules6393entering the cylinder be the same as ina locomotive in use (within a reasonabletolerance limit).D.3. Short Test for LocomotivesThe Agency is also proposing a shorttest to be used by the railroads for inusetesting. This test procedure wouldbe similar to the FTP test, but would notrequire measurement of the fuel flowrate and engine power output (whichrequire mechanical work on thelocomotive), or particulate emissions(which requires a fairly expensivesampling system). Also, less preciseanalytical equipment would be allowed.These allowances are all included tominimize testing time and cost. This testwould not allow direct calculation ofthe mass emission rates, but rather,would be limited to measurement ofconcentrations which would becompared to concentrationmeasurements made during certificationtesting. If the fuel flow rate and poweroutput of the engine are both assumedto be the same as measured atcertification, however, approximatemass emission rates could bedetermined.E. Railroad RequirementsHistorically, EPA has not adoptedspecific <strong>federal</strong> requirements for endusers of regulated mobile source enginesand vehicles. However, there are somefactors unique to the railroad industryand to the proposed regulation oflocomotives that require the railroads totake a more active role in assuringcompliance with today’s proposedstandards. These characteristics includethe proposed broad preemption of stateregulation, the industry practice ofperiodically remanufacturinglocomotives and the proposed definitionof such locomotives as new, and theunique relationship between thelocomotive manufacturers and therailroads.As discussed in the section oncompliance, EPA is proposing two inusetesting programs for locomotives:one conducted by manufacturers andremanufacturers, and another conductedby railroads. For the first program,manufacturers and remanufacturerswould need to obtain test locomotivesfrom the railroads. EPA expects that therailroads will cooperate with themanufacturers in order to providelocomotives for this testing. The Agencyrecognizes that the railroads have astrong financial interest in keeping theirlocomotives in revenue service andminimizing scheduling disruptions, andthat this could make it difficult formanufacturers to procure locomotivesfor in-use testing. Thus, as wasmentioned in the in-use testing programdiscussion, EPA is proposing arelatively long period of time in whichthe in-use testing can be done, as wellas a fairly small number of locomotivesrequired to be tested, in order tominimize such disruptions. EPA expectsthe railroads to provide reasonableassistance to the manufacturers andremanufacturers in support of the in-usetesting program. However, if amanufacturer or remanufacturer isunable to obtain a sufficient number oflocomotives for testing, the Agency mayrequire that the railroads do the testingthemselves, under the authority ofsection 114 of the Act. In the secondprogram, the railroads will be requiredto conduct their own in-use testing, asdiscussed above in the section on in-usetesting programs.EPA is proposing additionalprovisions to avoid unnecessaryburdens on smaller railroads. First, thein-use testing requirement would applyonly to Class I railroads. The potentialbenefits of obtaining extensive in-usetest data from non-Class I railroads donot justify the costs that would beincurred if each railroad was required tomaintain an emissions testing facility,especially in light of the fact that theinformation provided by the non-Class Irailroads would be duplicative of thatprovided by the Class I railroads. EPAis also proposing to exempt the smallestrailroads (as defined later in theparagraph) from compliance with theTier 0 standards for locomotives thathave never been brought intocompliance. More specifically, theserailroads would be allowed to rebuildtheir existing locomotives andlocomotives that they purchased afterthe effective date of the Tier 0 standardsaccording to their current practice,provided such locomotives were notoriginally manufactured or previouslyremanufactured to comply with <strong>federal</strong>emission standards. This exemptionwould allow these railroads to avoid thecosts of converting a pre-existing,noncomplying locomotive into onewhich complies with the Tier 0standards. All locomotives alreadycertified to the Tier 0 standards, eitherby that railroad or a previous owner,would be required to remain incompliance with EPA regulations eachsubsequent time that they areremanufactured, since this would bemuch less expensive than converting anoncomplying locomotive into onewhich complies with the Tier 0standards. As is discussed in the RSD,the cost of remanufacturing alocomotive so that it complies with theTier 0 standards is much greater the firsttime it is brought into compliance ascompared to subsequent remanufacturesdue to the one-time costs associatedwith the installation of such things ascharge air cooling systems. The Agencybelieves that such an exemption isappropriate since the emissions impactof such an exemption would beminimal. As discussed in the RSD, suchan exemption would likely amount toless than one percent of emissionsinitially, and would decrease andeventually disappear as the fleet turnsover to Tier I and Tier II locomotives.EPA is proposing that this exemptionwould be limited to railroads that have500 or fewer employees and are notowned by companies that the SmallBusiness Administration would notclassify as small businesses, andrequests comments as to whether thiscriteria is appropriate, and whethersome other criterion, such as annualrevenue, should be used. The Agencyrequests comment on how it shouldtreat holding companies which ownsmall railroads with respect to thisexemption. All railroads takingadvantage of this exemption would alsobe exempted from the reportingrequirements listed above. The Agencyrequests comment on how suchexempted locomotives should be treatedwith respect to the preemption ofcertain state standards or requirements,as discussed later in the preemptionsection.EPA is proposing that any locomotiveoperator that knowingly fails to properlymaintain (as defined by EPA at the timeof certification) a locomotive subject tothis regulation would be subject to civilpenalties for tampering. EPA isproposing that locomotive operatorsshould be required to perform aminimum amount of maintenancespecified by manufacturers andremanufacturers for components thatcritically affect emissions performance.EPA is proposing to limit the frequencyand type of maintenance that could berequired by manufacturers andremanufacturers, and to make suchrequirements subject to theAdministrator’s approval. Examples ofthe type of maintenance that could berequired are replacement of fuelinjectors and air filters, and cleaning ofturbochargers. The Agency believes thatthis requirement is appropriate giventhe high standards of maintenance andrepair observed in the railroad industry,the reasonable expectation bylocomotive manufacturers andremanufacturers that this maintenancewill be done, and the importance ofsuch maintenance for ensuring properemissions performance.
6394 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Proposed RulesThe Agency recognizes that, whilemany railroads own the locomotivesthat they operate, there is also asubstantial amount of leasing oflocomotives within the railroadindustry. The Agency is proposing thatthe railroad requirements described inthis section apply to the railroads (i.e.,the locomotive operators), but requestscomment on whether theserequirements would more appropriatelybe applied to the locomotive owners incases where the owner an operator arenot the same entity.F. MiscellaneousF.1. Liability for RemanufacturedLocomotives and Locomotive EnginesAs was previously discussed in theengine family certification section, EPAexpects that in some cases locomotivesand locomotive engines may beremanufactured using a remanufacturekit that was developed andmanufactured by one entity butinstalled by another. In these cases, it ismost likely that the kit manufacturerwill be the certificate holder. 18 Forexample, one of the primary locomotivemanufacturers could sell aremanufacture kit (to possibly include acollection of replacement parts or partsspecifications, along with installationand maintenance instructions) to arailroad that would use it toremanufacture one of its locomotiveengines. EPA believes it is critical toclearly define which entity would thenbe liable for the emissions performanceof that remanufactured locomotiveengine. As a starting point, the Agencyconsidered how it handles theinstallation of aftermarket alternativefuel conversion systems for on-highwayvehicles. 19 With such conversions, EPAholds the certificate holder liable for thein-use performance of the vehicles. EPAis proposing a similar presumptiveliability approach for locomotiveremanufacturing. Specifically, EPA isproposing that the primary liability forthe in-use emissions performance of aremanufactured locomotive orlocomotive engine would be with thecertificate holder. In cases where thecertificate holder and installer areseparate entities, the certificate holderwould be required to provide adequateinstallation instructions with the kit.Since the primary liability would bepresumed to apply to the certificateholder, the certificate holder would alsohave an incentive to ensure that the kitswere being properly installed.Ultimately, the installer would be liablefor improper installation under theproposed tampering prohibitions. Itshould be noted that such an installerwould still be considered to be aremanufacturer, and thus would also bepotentially liable under other provisionsof this part and of the Act. The Agencyrequests comment on this proposedliability scheme for remanufacturedlocomotives and locomotive engines.F.2. Defect ReportingEPA is proposing that a manufactureror remanufacturer of locomotives orlocomotive engines be required to file adefect information report whenever themanufacturer or remanufactureridentifies the existence of a specificemission-related defect in a locomotive,or locomotive engine. These proposedreporting requirements are similar instructure to the requirements found inthe on-highway and nonroad over 37kW programs for compression ignitionengines, 20 except that EPA proposes thata report be filed when a singlelocomotive, rather than 25 (as in the onhighwayand over 37 kW programs) isfound to be defective. During therulemaking in which the defectreporting requirements (including thethreshold of 25) were adopted for onhighwayvehicles and engines (42 FR28123), the Agency considered a lowerthreshold, but decided that it would betoo burdensome. However, there arethree reasons why a lower thresholdwould be appropriate for locomotives.First, since reliability is a very criticalconcern for locomotive purchasers,locomotives and locomotive enginestend to be very carefully manufactured.As such, the number of emission-relateddefects that would actually occur isexpected to be small. Second, thenumber of locomotives produced undera single certificate will be much smallerfor locomotives than for most onhighwayor nonroad engine families.While 25 would be a very small fractionof a light-duty engine family of 100,000vehicles, it could be one-quarter or moreof the annual production volume of alocomotive engine family. Finally, giventhe size of locomotive engines (30 to 40times the horsepower of a typical lightdutyvehicle), and their long servicelives (up to one million miles betweenrebuilds), the environmental impact ofeven a single defective engine couldeasily be much more significant than 25defective light-duty vehicles.18 For the purposes of this discussion, EPA isproposing that the certificate holder for aremanufacture kit be termed the remanufacturer.The entity which installs the remanufacture kitwould be termed the installer. The remanufacturercan also be the installer.19 59 FR 48472, Sept. 21, 1994 and 59 FR 50042,Sept. 30, 1994. 20 40 CFR part 89, subpart T.F.3. Importation of NonconformingLocomotivesEPA is proposing to prohibit theimportation of locomotives andlocomotive engines that are originallymanufactured after the effective date ofthis rule, but are not covered by acertificate of conformity, except asprovided below. The proposedprohibition is similar to existingregulations for the importation ofnonconforming motor vehicles, motorvehicle engines (on-highway program),large (over 37 kW) compression-ignitionnonroad engines and other regulatedmobile sources.Under EPA’s current motor vehicleregulations, Independent CommercialImporters (ICIs) are allowed to importuncertified vehicles and engines intothe U.S. but are required to comply withthe same requirements that areapplicable to motor vehiclemanufacturers (e.g., certification,testing, labeling, warranty, recall,maintaining records). EPA provides foran ICI program for motor vehicles andmotor vehicle engines becausesignificant importation of such vehiclesand engines occurs. EPA does notanticipate, however, any importation ofnonconforming locomotives andlocomotive engines. Therefore, an ICIprogram is not necessary forlocomotives or locomotive engines, andEPA is not proposing such a program.This proposal includes certainexemptions to the prohibition onimporting nonconforming locomotivesand locomotive engines under theauthority of section 203(b) of the Act.These include temporary importationexemptions for repairs and alterations,testing, precertification, display,national security, and certainlocomotives and locomotive enginesshown to be identical, in all materialrespects, to their corresponding UnitedStates certified versions. In previousrulemakings, EPA has provided for anexemption for motor vehicles andengines greater than 20 originalproduction years old. However, EPA isnot proposing a similar exemption forlocomotives and locomotive engines.Since it is normal industry practice forlocomotives to be in service for morethan 40 years, these older locomotivesconstitute a large fraction of the in-usefleet, much larger than do motorvehicles over 20 years old. The Agencyis proposing emission standards thatwill apply to all locomotives originallymanufactured on or after January 1,1973 when those locomotives andlocomotive engines are remanufactured,including those more than 20 originalproduction years old. It would be
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