[Federal Register: April 16, 1998 (Rules and Regulations)]
[Page 19077-19084]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap98-15]

[[pp. 19077-19084]] Emission Standards for Locomotives and Locomotive Engines

[[Continued from page 19076]]

[[Page 19077]]

Engine Programs and Compliance Division. This label should:
    (i) Be affixed in a readily visible portion of the locomotive or
locomotive engine;
    (ii) Be attached in such a manner that 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 or
remanufacturer;
    (C) Engine displacement, engine family identification, and model
year of engine; or person of office to be contacted for further
information about the engine;
    (D) The statement ``This locomotive or locomotive engine is exempt
from the prohibitions of 40 CFR 92.1103.''
    (4) No provision of paragraph (a)(3) of this section prevents a
manufacturer or remanufacturer from including any other information it
desires on the label.
    (5) The locomotive or locomotive engine is not used in revenue-
generating service, or sold.
    (b) Display exemption. An uncertified locomotive or locomotive
engine that is to be used solely for display purposes, and that will
only be operated incident and necessary to the display purpose, and
will not be sold unless an applicable certificate of conformity has
been obtained for the locomotive or engine, is exempt without request
from the standards of this part.

Sec. 92.907  Non-locomotive-specific engine exemption.

    (a) For manufacturers selling non-locomotive-specific engines to be
used as propulsion engines in remanufactured locomotives, such
locomotives and engines are exempt, provided:
    (1) The engines are covered by a certificate of conformity issued
under 40 CFR part 89;
    (2) More engines are reasonably projected to be sold and used under
the certificate for non-locomotive use than for use in locomotives;
    (3) The number of such engines exempted under this paragraph (a)
does not exceed 25 per manufacturer in any calendar year;
    (4) The Administrator has approved the exemption as specified in
paragraph (e) of this section.
    (b) For manufacturers of freshly manufactured switch locomotives
powered by non-locomotive-specific engines, such freshly manufactured
switch locomotives are exempt, provided:
    (1) The engines are covered by a certificate of conformity issued
under 40 CFR part 89;
    (2) More engines are reasonably projected to be sold and used under
the certificate for non-locomotive use than for use in locomotives;
    (3) The number of such locomotives sold within any three-year
period by the manufacturer, and exempted under this paragraph (b) does
not exceed 15; and
    (4) The Administrator has approved the exemption as specified in
paragraph (e) of this section.
    (c)(1) The remanufacture of locomotive engines that have been
exempted under this section is exempt without request provided that the
remanufacturer remanufactures them to a previously-certified
configuration, or to be equivalent to engines that have been previously
certified under this part or 40 CFR part 89.
    (2) The remanufacture of non-locomotive-specific engines that were
used in locomotives prior to January 1, 2000 is exempt from the
requirements of this part provided: The remanufacturer remanufactures
them to be equivalent to engines that have been previously certified
under this part or 40 CFR part 89, or demonstrates that the
NO<INF>X</INF> emissions from the remanufactured locomotive engine are
at least 40 percent less than its emissions prior to certification; and
the Administrator has approved the exemption as specified in paragraph
(e) of this section.
    (d) Manufacturers and remanufacturers of engines and/or locomotives
exempted under this section shall:
    (1) Report annually to EPA the number of engines exempted under
paragraph (a) of this section;
    (2) Report annually to EPA the number of locomotives exempted under
paragraph (b) of this section; and
    (3) Upon the Administrator's request, provide test data showing the
emissions of the engine or locomotive when it is operated at the actual
in-use locomotive power points.
    (e)(1) Manufacturers and remanufacturers seeking an exemption under
this section shall notify the Administrator of such intent at least 90
days prior to selling or placing into service the locomotives or
locomotive engines.
    (2) The Administrator shall deny a non-locomotive-specific
exemption in any case where he/she has evidence that approving such an
exemption would be inappropriate because of adverse environmental or
economic impacts.
    (3) When denying an exemption, the Administrator shall notify the
manufacturer or remanufacturer of EPA's decision to deny or consider
denying the exemption within 60 days of the manufacturer's or
remanufacturer's notification in paragraph (e)(1) of this section.
    (4) Unless the Administrator notifies the manufacturer or
remanufacturer of EPA's decision to deny or consider denying the
exemption within 60 days of the manufacturer's or remanufacturer's
notification in paragraph (e)(1) of this section, the exemption shall
be considered approved 90 days of the manufacturer's or
remanufacturer's notification.

Sec. 92.908  National security exemption.

    A manufacturer or remanufacturer 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.

Sec. 92.909  Export exemptions.

    (a) A new locomotive or locomotive engine intended solely for
export, and so labeled or tagged on the outside of any container, the
locomotive and on the engine itself, is subject to the provisions of
Sec. 92.1103, unless the importing country has new locomotive or new
locomotive engine emission standards 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 a country having
emission standards which differ from EPA standards.
    (c) It is a condition of any exemption for the purpose of export
under paragraph (a) of this section, that such exemption is void ab
initio with respect to a new locomotive or locomotive engine intended
solely for export, where such locomotive or locomotive engine is sold,
or offered for sale, to an ultimate purchaser or otherwise distributed
or introduced into commerce in the United States for purposes other
than export.

Sec. 92.910  Granting of exemptions.

    (a) If upon completion of the review of an exemption request made
pursuant to Sec. 92.905 or Sec. 92.908, EPA determines it is
appropriate to grant such an exemption, a memorandum of exemption is to
be prepared and submitted to the person requesting the exemption. The
memorandum is to set forth the basis for the exemption, its scope, and
such terms and conditions as are deemed necessary. Such terms and

[[Page 19078]]

conditions 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 locomotives or 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
locomotives or engines.
    (b) Any exemption granted pursuant to paragraph (a) of this section
is deemed to cover any subject locomotive or 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 locomotive or engine. Consequently, the causing or the
performing of an act prohibited under Sec. 92.1103(a)(1) or (a)(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. 92.1103(a) are applicable,
liable to suit under sections 204 and 205 of the Act.

Sec. 92.911  Submission of exemption requests.

    Requests for exemption or further information concerning exemptions
and/or the exemption request review procedure should be addressed to:
Group Manager, Engine Compliance Programs Group, Engine Programs and
Compliance Division U.S. Environmental Protection Agency, 6403-J, 401 M
St., S.W., Washington, D.C. 20460.

Subpart K--Requirements Applicable to Owners and Operators of
Locomotives and Locomotive Engines

Sec. 92.1001  Applicability.

    The requirements of this subpart are applicable to railroads and
all other owners and operators of locomotives and locomotive engines
subject to the provisions of subpart A of this part, except as
otherwise specified.

Sec. 92.1002  Definitions.

    The definitions of subpart A of this part apply to this subpart.

Sec. 92.1003  In-use testing program.

    (a) Applicability. This section applies to all Class I freight
railroads, beginning on January 1, 2005.
    (b) Testing requirements. Each railroad subject to the provisions
of this section shall annually test a sample of locomotives in its
fleet. For the purpose of this section, a railroad's fleet includes
both the locomotives that it owns and the locomotives that it is
leasing.
    (1)(i) Except as specified in paragraphs (b)(1)(ii) and (iii) of
this section, the number of locomotives to be tested shall be at least
0.15 percent of the average number of locomotives in the railroad's
fleet during the previous calendar year (i.e., the number tested shall
be 0.0015 multiplied by the number of locomotives in the fleet, rounded
up to the next whole number).
    (ii) After December 31, 2015, the number of locomotives to be
tested by railroads with 500 or more locomotives shall be at least 0.10
percent of the average number of locomotives in the railroad's fleet
during the previous calendar year (i.e., the number tested shall be
0.0010 multiplied by the number of locomotives in the fleet, rounded up
to the next whole number). After December 31, 2015, the number of
locomotives to be tested by railroads with fewer than 500 locomotives
shall be zero. The provisions of this paragraph (b)(1)(ii) apply only
when:
    (A) No new locomotive emission standards have taken effect during
the previous 5 years;
    (B) Locomotive emission controls have not changed fundamentally,
during the previous 5 years, in any manner that could reasonably be
expected to have the potential to significantly affect emissions
durability; and
    (C) Testing during the previous 5 years has shown, to the
satisfaction of the Administrator, that the degree of noncompliance for
tested locomotives is low enough that the higher rate of testing
specified in paragraph (b)(1)(i) of this section is not needed.
    (iii) The Administrator may allow a railroad to perform a smaller
number of tests than specified in paragraphs (b)(1)(i) or (ii) of this
section, where he/she determines that the number of tests specified in
paragraphs (b)(1)(i) or (ii) of this section is not necessary.
    (2) Testing shall be performed according to the test procedures in
subpart B of this part, unless otherwise approved by the Administrator.
    (c) Test locomotive selection. (1)(i) A representative sample of
locomotives shall be randomly selected for testing.
    (ii) Unless otherwise specified by the Administrator, the selection
shall be made by the railroad.
    (iii) The railroad shall select locomotives from each manufacturer
and remanufacturer, and from each tier level (e.g., Tier 0, Tier 1 and
Tier 2) in proportion to their numbers in the railroad's fleet, except
where specified or allowed otherwise by the Administrator.
    (iv) Locomotives tested during the previous year shall be excluded
from the sample.
    (v) Locomotives may not be excluded from the sample because of
visible smoke, a history of durability problems, or other evidence of
malmaintenance.
    (2)(i) Locomotives selected for testing according to the provisions
of this section shall have been certified in compliance with
requirements in subpart A of this part, and shall have been operated
for at least 100 percent of their useful lives.
    (ii) Where the number of locomotives that have been operated for at
least 100 percent of their useful lives is not large enough to fulfill
the testing requirement, locomotives still within their useful lives
shall be tested. In this case, the locomotives must have been operated
longer than at least 80 percent of the locomotives in the railroad's
fleet.
    (3) Where specified by the Administrator, the railroad shall test
specified locomotives in its fleet, including locomotives that do not
meet the criteria specified in paragraph (c)(2) of this section.
    (d) Reporting requirements. All testing done in compliance with the
provisions of this section shall be reported to EPA within thirty
calendar days of the end of each year. At a minimum, each report shall
contain the following:
    (1) Full corporate name and address of the railroad providing the
report.
    (2) For each locomotive tested, the following:
    (i) Corporate name of the manufacturer and last remanufacturer(s)
(including both certificate holder and installer, where different) of
the locomotive, and the corporate name of the manufacturer or last
remanufacturer(s) of the engine if different than that of the
manufacturer or remanufacturer(s) of the locomotive;
    (ii) Year, and if known month of original manufacture of the
locomotive and the engine, and the manufacturer's model designation of
the locomotive and manufacturer's model designation of the engine, and
the locomotive identification number;
    (iii) Year, and if known month that the engine last underwent
remanufacture, and the engine remanufacturer's designation which either
reflects, or most closely reflects, the engine after the last
remanufacture, and the engine family identification;
    (iv) The number of MW-hrs and miles (where available) the
locomotive has been operated since its last remanufacture; and
    (v) The emission test results for all measured pollutants.

[[Page 19079]]

    (e) Any railroad that performed no emission testing during a given
year is exempt from the reporting requirements described in paragraph
(d) of this section for that year.
    (f) In lieu of some or all of the test data required by this
section, railroads may submit equivalent emission data collected for
other purposes. The Administrator may also allow emission data
collected using other testing or sampling procedures to be submitted in
lieu of some or part of the data required by this section with advance
approval.
    (g) All reports submitted to EPA in compliance with the provisions
of this subpart must be addressed to: Group Manager, Engine Compliance
Programs Group, Engine Programs and Compliance Division 6403-J,
Environmental Protection Agency, 401 M St., S.W., Washington, D.C.
20460.

Sec. 92.1004  Maintenance and repair.

    (a) Unless otherwise approved by the Administrator, all owners of
locomotives subject to the provisions of this part shall ensure that
all emission-related maintenance is performed on the locomotives, as
specified in the maintenance instructions provided by the certifying
manufacturer or remanufacturer in compliance with Sec. 92.211 (or
maintenance that is equivalent to the maintenance specified by the
certifying manufacturer or remanufacturer in terms of maintaining
emissions performance).
    (b) Unless otherwise approved by the Administrator, all maintenance
and repair of locomotives and locomotive engines subject to the
provisions of this part performed by any owner, operator or other
maintenance provider, including maintenance that is not covered by
paragraph (a) of this section, shall be performed, using good
engineering judgement, in such a manner that the locomotive or
locomotive engine continues (after the maintenance or repair) to the
meet the emission standards or family emission limits (as applicable)
it was certified as meeting prior to the need for maintenance or
repair.
    (c) The owner of the locomotive shall maintain records of all
maintenance and repair that could reasonably affect the emission
performance of any locomotive or locomotive engine subject to the
provision of this part.

Sec. 92.1005  In-use locomotives.

    (a)(1) Any Class I railroad subject to the provisions of this
subpart shall supply to the Administrator, upon request, in-use
locomotives, selected by the Administrator. The number of locomotives
which the Administrator requests under this paragraph (a)(1) shall not
exceed five locomotives per railroad per calendar year. These
locomotives or engines shall be supplied for testing at such reasonable
time and place and for such reasonable periods as the Administrator may
require. The Administrator shall make reasonable allowances to the
railroad to schedule the supply of locomotives for testing in such a
manner that it minimizes disruption of its operational schedule.
    (2) Any non-Class I railroad or other entity subject to the
provisions of this subpart shall supply to the Administrator, upon
request, in-use locomotives, selected by the Administrator. The number
of locomotives which the Administrator requests under this paragraph
(a)(2) shall not exceed two locomotives per railroad (or other entity)
per calendar year. These locomotives or engines shall be supplied for
testing at such reasonable time and place and for such reasonable
periods as the Administrator may require. The Administrator shall make
reasonable allowances to the railroad or other entity to schedule the
supply of locomotives for testing in such a manner that it minimizes
disruption of its operational schedule. The Administrator shall request
locomotives under this paragraph (a)(2) only for purposes which cannot
be accomplished using locomotives supplied under paragraph (a)(1) of
this section.
    (b) Any railroad or other entity subject to the provisions of this
subpart shall make reasonable efforts to supply manufacturers and
remanufacturers of locomotives and locomotive engines with the test
locomotives and locomotive engines needed to fulfill the in-use testing
requirements contained in subpart G of this part.

Sec. 92.1006  Refueling requirements.

    (a) Refueling equipment used by a locomotive operator for
locomotives fueled with a volatile fuel shall be designed in such a
manner so as not to render inoperative or reduce the effectiveness of
the controls on the locomotive that are intended to minimize the escape
of fuel vapors.
    (b) Hoses used to refuel gaseous-fueled locomotives shall not be
designed to be bled or vented to the atmosphere under normal operating
conditions.

Subpart L--General Enforcement Provisions and Prohibited Acts

Sec. 92.1101  Applicability.

    The requirements of this subpart are applicable to all
manufacturers, remanufacturers, owners and operators of locomotives and
locomotive engines subject to the provisions of subpart A of this part.

Sec. 92.1102  Definitions.

    The definitions of subpart A of this part apply to this subpart.

Sec. 92.1103  Prohibited acts.

    (a) The following acts and the causing thereof are prohibited:
    (1)(i)(A) In the case of a manufacturer or remanufacturer of new
locomotives or new locomotive engines, the sale, the offering for sale,
the introduction into commerce, the delivery for introduction into
commerce, or the distribution in commerce of any new locomotive or new
locomotive engine manufactured or remanufactured after the effective
date of applicable emission standards under this part, unless such
locomotive or locomotive engine is covered by a certificate of
conformity issued (and in effect) under regulations found in this part.
(Introduction into commerce includes placement of a new locomotive or
new locomotive engine back into service following remanufacturing.)
    (B) The manufacture or remanufacture of a locomotive or locomotive
engine for the purpose of an act listed in paragraph (a)(1)(i)(A) of
this section unless such locomotive or locomotive engine is covered by
a certificate of conformity issued (and in effect) under regulations
found in this part prior to its introduction into commerce.
    (ii) In the case of any person, except as provided in Subpart I of
this part, the importation into the United States of any locomotive or
locomotive engine manufactured or remanufactured after June 15, 1998,
unless such locomotive or locomotive 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 this part.
    (ii) For a person to fail or refuse to permit entry, testing, or
inspection authorized under this part.
    (iii) For a person to fail or refuse to perform tests, or to have
tests performed as required by this part.
    (iv) For a person to fail to establish or maintain records as
required under this part.
    (3)(i) For a person to remove or render inoperative a device or
element of

[[Page 19080]]

design installed on or in a locomotive or locomotive engine in
compliance with regulations under this part, or to set any adjustable
parameter to a setting outside of the range specified by the
manufacturer or remanufacturer, as approved in the application for
certification by the Administrator.
    (ii) For a person to manufacture, remanufacture, sell or offer to
sell, or install, a part or component intended for use with, or as part
of, a locomotive or locomotive 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 locomotive or locomotive
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.
    (iii) For a locomotive owner or operator to fail to comply with the
maintenance and repair requirements of Sec. 92.1004.
    (4) For a manufacturer or a remanufacturer of a new locomotive or
locomotive engine subject to standards prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver for
introduction into commerce, a new locomotive or new locomotive engine
unless the manufacturer or remanufacturer has complied with the
requirements of Sec. 92.1107.
    (ii) To sell, offer for sale, or introduce or deliver for
introduction into commerce, a new locomotive or new locomotive engine
unless all required labels and tags are affixed to the engine in
accordance with Sec. 92.212.
    (iii) To fail or refuse to comply with the requirements of
Sec. 92.1108.
    (iv) Except as provided in Sec. 92.211, 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 remanufacturer or a person acting for the
manufacturer or remanufacturer or under its control, or conditioned
upon service performed by such persons.
    (v) To fail or refuse to comply with the terms and conditions of
the warranty under Sec. 92.1107.
    (5) For a manufacturer or remanufacturer of locomotives to
distribute in commerce, sell, offer for sale, or deliver for
introduction into commerce new locomotives (including all locomotives
which contain a new 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)(3) of this section is to be construed
to require the use of any manufacturer's or remanufacturer's parts in
maintaining or repairing a locomotive or locomotive engine.
    (2) Actions for the purpose of repair or replacement of a device or
element of design or any other item are not considered prohibited acts
under paragraph (a)(3)(i) of this section if the action is 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 remanufacturing a locomotive are not
considered prohibited acts under paragraph (a)(3)(i) of this section if
the new remanufactured locomotive is covered by a certificate of
conformity and complies with all applicable requirements of this part.

Sec. 92.1104  General enforcement provisions.

    (a) Information collection provisions. (1)(i) Every manufacturer or
remanufacturer of new locomotives and/or new locomotive engines and
other persons subject to the requirements of this part must establish
and maintain records, perform tests, make reports and provide
information the Administrator may reasonably require to determine
whether the manufacturer or remanufacturer 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.
The manufacturer or remanufacturer shall comply in all respects with
the requirements of subpart E of this part.
    (ii) Every manufacturer, remanufacturer, owner, or operator of
locomotives or locomotive engines exempted from the standards or
requirements of this part must establish and maintain records, perform
tests, make reports and provide information the Administrator may
reasonably require regarding the emissions of such locomotives or
locomotive engines.
    (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 remanufacturer, or of any person whom the manufacturer
or remanufacturer 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 remanufacturer or by a person
whom the manufacturer or remanufacturer engaged to perform the
activity.
    (b) Exemption provision. The Administrator may exempt a new
locomotive or new locomotive engine from Sec. 92.1103 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, or for other purposes
allowed by subpart J of this part.
    (c) Importation provision. (1) A new locomotive or locomotive
engine, offered for importation or imported by a person in violation of
Sec. 92.1103 is to 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 locomotive or locomotive 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 locomotive or locomotive engine
will be brought into conformity with the standards, requirements, and
limitations applicable to it under this part.
    (2) If a locomotive or locomotive engine is finally refused
admission under this paragraph (c), 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 locomotive or locomotive engine that
fails to comply with applicable standards of the Administrator under
this part.
    (d) Export provision. A new locomotive or locomotive engine
intended solely for export, and so labeled or tagged on the outside of
the container if used and on the engine,

[[Page 19081]]

shall be subject to the provisions of Sec. 92.1103, except that if the
country that is to receive the locomotive or locomotive engine has
emission standards that differ from the standards prescribed under
subpart A of this part, then the locomotive or locomotive engine must
comply with the standards of the country that is to receive the
locomotive or locomotive engine.
    (e) Recordkeeping. Except where specified otherwise, records
required by this part must be kept for eight (8) years.

Sec. 92.1105  Injunction proceedings for prohibited acts.

    (a) The district courts of the United States have jurisdiction to
restrain violations of Sec. 92.1103(a).
    (b) Actions to restrain violations of Sec. 92.1103(a) 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. 92.1106  Penalties.

    (a) Violations. A violation of the requirements of this subpart is
a violation of the applicable provisions of the Act, including sections
213(d) and 203, and is subject to the penalty provisions thereunder.
    (1) A person who violates Sec. 92.1103(a)(1), (a)(4), or (a)(5), or
a manufacturer, remanufacturer, dealer or railroad who violates
Sec. 92.1103(a)(3)(i) or (iii) is subject to a civil penalty of not
more than $25,000 for each violation unless modified by the Debt
Collection Improvement Act (31 U.S.C. 3701 et seq.) and/or regulations
issued thereunder.
    (2) A person other than a manufacturer, remanufacturer, dealer, or
railroad who violates Sec. 92.1103(a)(3)(i) or any person who violates
Sec. 92.1103(a)(3)(ii) is subject to a civil penalty of not more than
$2,500 for each violation unless modified by the Debt Collection
Improvement Act and/or regulations issued thereunder.
    (3) A violation with respect to Sec. 92.1103(a)(1), (a)(3)(i),
(a)(3)(iii), (a)(4), or (a)(5) constitutes a separate offense with
respect to each locomotive or locomotive engine.
    (4) A violation with respect to Sec. 92.1103(a)(3)(ii) constitutes
a separate offense with respect to each part or component. Each day of
a violation with respect to Sec. 92.1103(a)(5) constitutes a separate
offense.
    (5) A person who violates Sec. 92.1103(a)(2) or (a)(5) is subject
to a civil penalty of not more than $25,000 per day of violation unless
modified by the Debt Collection Improvement Act and/or regulations
issued thereunder.
    (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 (b) may be brought in the
district court of the United States for the district in which the
defendant resides or has the Administrator's principal place of
business, and the court has jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessed
under this paragraph (b), 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 may 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 shall not exceed $200,000, 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 shall be 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 paragraph (c), the Administrator shall 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 (c) does not affect or limit the
Administrator's authority to enforce any provisions of the Act; except
that any violation with respect to which the Administrator has
commenced and is diligently prosecuting an action under this paragraph
(c), 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 paragraph shall not be the subject of a
civil penalty action under paragraph (b) of this section.
    (ii) No action by the Administrator under this paragraph (c) shall
affect a person's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this paragraph (c) 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. A person against whom a civil penalty is
assessed in accordance with this paragraph (c) 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 principal
place of business is located, within the 30-day period beginning on the
date a civil penalty order is issued. The person shall simultaneously
send a copy of the filing by certified mail to the Administrator and
the Attorney General. The Administrator shall 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 (c) 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

[[Page 19082]]

the Administrator, the Administrator shall 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 (26
U.S.C. 6621(a)(2)) 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 shall be 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 ten percent of the aggregate
amount of that person's penalties and nonpayment penalties which are
unpaid as of the beginning of such quarter.

Sec. 92.1107  Warranty provisions.

    (a) The manufacturer or remanufacturer of each locomotive or
locomotive engine must warrant to the ultimate purchaser and each
subsequent purchaser or owner that the locomotive or locomotive engine
is designed, built, and equipped so as to conform at the time of sale
or time of return to service following remanufacture with applicable
regulations under section 213 of the Act, and is free from defects in
materials and workmanship which cause such locomotive or locomotive
engine to fail to conform with applicable regulations for its warranty
period (as determined under Sec. 92.10).
    (b) For the purposes of this section, the owner of any locomotive
or locomotive engine warranted under this part is responsible for the
proper maintenance of the locomotive and the locomotive engine. Proper
maintenance includes replacement and/or service, as needed, at the
owner's expense at a service establishment or facility of the owner's
choosing, of all parts, items, or devices which were in general use
with locomotives or locomotive engines prior to 1999. For diesel
engines, this would generally include replacement or cleaning of the
fuel delivery and injection system.

Sec. 92.1108  In-use compliance provisions.

    (a) Effective with respect to locomotives and locomotive engines
subject to the requirements of this part:
    (1) If the Administrator determines that a substantial number of
any class or category of locomotives or locomotive 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 period (as defined under Sec. 92.2), the
Administrator shall immediately notify the manufacturer or
remanufacturer of such nonconformity and require the manufacturer or
remanufacturer to submit a plan for remedying the nonconformity of the
locomotives or locomotive engines with respect to which such
notification is given.
    (i) The manufacturer's or remanufacturer's plan shall provide that
the nonconformity of any such locomotives or locomotive engines which
are properly used and maintained will be remedied at the expense of the
manufacturer or remanufacturer.
    (ii) If the manufacturer or remanufacturer disagrees with such
determination of nonconformity and so advises the Administrator, the
Administrator shall afford the manufacturer or remanufacturer 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 or remanufacturer to
provide prompt notification of such nonconformity in accordance with
paragraph (a)(2) of this section. The manufacturer or remanufacturer
shall comply in all respects with the requirements of subpart G of this
part.
    (2) Any notification required to be given by the manufacturer or
remanufacturer under paragraph (a)(1) of this section with respect to
any class or category of locomotives or locomotive engines shall be
given to ultimate purchasers, subsequent purchasers (if known), and
dealers (as applicable) in such manner and containing such information
as required in Subparts E and H of this part.
    (3)(i) The certifying manufacturer or remanufacturer shall furnish
with each new locomotive or locomotive engine written instructions for
the proper maintenance and use of the engine by the ultimate purchaser
as required under Sec. 92.211.
    (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 locomotive or locomotive 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 must not
directly or indirectly distinguish between service performed by the
franchised dealers of such manufacturer or remanufacturer, or any other
service establishments with which such manufacturer or remanufacturer
has a commercial relationship, and service performed by independent
locomotive or locomotive engine repair facilities with which such
manufacturer or remanufacturer 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 or remanufacturer satisfies the Administrator
that the locomotive or locomotive 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 or remanufacturer shall indicate
by means of a label or tag permanently affixed to the locomotive and to
the engine that the locomotive and/or the locomotive 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. 92.212.
    (b) The manufacturer or remanufacturer bears all cost obligation
any 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 or remanufacturer to a dealer through franchise or other
agreement is prohibited.
    (c) If a manufacturer or remanufacturer includes in an
advertisement a statement respecting the cost or value of emission
control devices or systems, the manufacturer or remanufacturer 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 or remanufacturer as
the Comptroller General has to those of a recipient of

[[Page 19083]]

assistance for purposes of section 311 of the Act.

Appendices to Part 92

Appendix I to Part 92--Emission Related Locomotive and Engine
Parameters and Specifications

I. Basic Engine Parameters--Reciprocating Engines.
    1. Compression ratio.
    2. Type of air aspiration (natural, Roots blown, supercharged,
turbocharged).
    3. Valves (intake and exhaust).
    a. Head diameter dimension.
    b. Valve lifter or actuator type and valve lash dimension.
    4. Camshaft timing.
    a. Valve opening--intake exhaust (degrees from TDC or BDC).
    b. Valve closing--intake exhaust (degrees from TDC or BDC).
    c. Valve overlap (degrees).
    5. Ports--two stroke engines (intake and/or exhaust).
    a. Flow area.
    b. Opening timing (degrees from TDC or BDC).
    c. Closing timing (degrees from TDC or BDC).
II. Intake Air System.
    1. Roots blower/supercharger/turbocharger calibration.
    2. Charge air cooling.
    a. Type (air-to-air; air-to-liquid).
    b. Type of liquid cooling (engine coolant, dedicated cooling
system).
    c. Performance (charge air delivery temperature ( deg.F) at
rated power and one other power level under ambient conditions of 80
 deg.F and 110  deg.F, and 3 minutes and 15 minutes after selecting
rated power, and 3 minutes and 5 minutes after selecting other power
level).
    3. Temperature control system calibration.
    4. Maximum allowable inlet air restriction.
III. Fuel System.
    1. General.
    a. Engine idle speed.
    2. Carburetion.
    a. Air-fuel flow calibration.
    b. Idle mixture.
    c. Transient enrichment system calibration.
    d. Starting enrichment system calibration.
    e. Altitude compensation system calibration.
    f. Hot idle compensation system calibration.
    3. Fuel injection--non-compression ignition engines.
    a. Control parameters and calibrations.
    b. Idle mixture.
    c. Fuel shutoff system calibration.
    d. Starting enrichment system calibration.
    e. Transient enrichment system calibration.
    f. Air-fuel flow calibration.
    g. Altitude compensation system calibration.
    h. Operating pressure(s).
    i. Injector timing calibration.
    4. Fuel injection--compression ignition engines.
    a. Control parameters and calibrations.
    b. Transient enrichment system calibration.
    c. Air-fuel flow calibration.
    d. Altitude compensation system calibration.
    e. Operating pressure(s).
    f. Injector timing calibration.
IV. Ignition System--non-compression ignition engines.
    1. Control parameters and calibration.
    2. Initial timing setting.
    3. Dwell setting.
    4. Altitude compensation system calibration.
    5. Spark plug voltage.
V. Engine Cooling System.
    1. Thermostat calibration.
VI. Exhaust System.
    1. Maximum allowable back pressure.
VII. Exhaust Emission Control System.
    1. Air injection system.
    a. Control parameters and calibrations.
    b. Pump flow rate.
    2. EGR system.
    a. Control parameters and calibrations.
    b. EGR valve flow calibration.
    3. Catalytic converter system.
    a. Active surface area.
    b. Volume of catalyst.
    c. Conversion efficiency.
    4. Backpressure.
VIII. Crankcase Emission Control System.
    1. Control parameters and calibrations.
    2. Valve calibrations.
IX. Auxiliary Emission Control Devices (AECD).
    1. Control parameters and calibrations.
    2. Component calibration(s).
X. Evaporative Emission Control System.
    1. Control parameters and calibrations.
    2. Fuel tank. a. Volume.
    b. Pressure and vacuum relief settings.

Appendix II to Part 92--Interpretive Ruling for Sec. 92.705--
Remedial Plans

    The following is an interpretive ruling set forth previously by
EPA for on-highway vehicles. EPA expects to apply the same
principles to locomotives.
    (1) The purpose of this ruling is to set forth EPA's
interpretation regarding one aspect of a motor vehicle or motor
vehicle engine manufacturer's recall liability under section
207(c)(1) of the Clean Air Act, 42 U.S.C. 7641(c)(1). This ruling
will provide guidance to vehicle and engine manufacturers to better
enable them to submit acceptable remedial plans.
    (2) Section 207(c)(1) requires the Administrator to base a
recall order on a determination that a substantial number of in-use
vehicles or engines within a given class or category of vehicles or
engines, although properly maintained and used, fail to conform to
the regulations prescribed under section 202 when in actual use
throughout their useful lives. After making such a determination, he
shall require the manufacturer to submit a plan to remedy the
nonconformity of any such vehicles or engines. The plan shall
provide that the manufacturer will remedy, at the manufacturer's
expense, all properly maintained and used vehicles which experienced
the nonconformity during their useful lives regardless of their age
or mileage at the time of repair.

Appendix III to Part 92--Smoke Standards for Non-Normalized
Measurements

                    Table III-1.--Equivalent Smoke Standards for Non-Normalized Measurements
----------------------------------------------------------------------------------------------------------------
                  Path length                                               Standards
----------------------------------------------------------------------------------------------------------------
             If the path length is:                              Then the opacity may not exceed:
----------------------------------------------------------------------------------------------------------------
                                                           Peak                         Steady-State
              cm                    inches      ----------------------------------------------------------------
                                                    3-sec        30-sec       Tier 0       Tier 1       Tier 2
----------------------------------------------------------------------------------------------------------------
10.0-19.9....................  3.94-7.86.......            7            5            4            3            2
20.0-29.9....................  7.87-11.80......           13           10            7            6            4
30.0-39.9....................  11.81-15.74.....           19           14           10            8            6
40.0-49.9....................  15.75-19.68.....           24           18           13           11            9
50.0-59.9....................  19.69-23.61.....           29           23           16           13           11
60.0-69.9....................  23.62-27.55.....           34           26           19           16           13
70.0-79.9....................  27.56-31.49.....           38           30           22           18           14
80.0-89.9....................  31.50-35.42.....           43           34           25           21           16
90.0-99.9....................  35.43-39.36.....           46           37           27           23           18
100.0-109.9..................  39.37-43.30.....           50           40           30           25           20
110.0-119.9..................  43.31-47.23.....           53           43           32           27           22
120.0-129.9..................  47.24-51.17.....           56           46           35           29           23
130.0-139.9..................  51.18-55.11.....           59           49           37           31           25
140.0-149.9..................  55.12-59.05.....           62           51           39           33           27
150.0-159.9..................  59.06-62.98.....           65           54           41           35           28

[[Page 19084]]


160.0-169.9..................  62.99-66.92.....           67           56           43           37           30
170.0-179.9..................  66.93-70.86.....           69           58           45           39           32
180.0-189.9..................  70.87-74.79.....           71           60           47           40           33
190.0-199.9..................  74.80-78.73.....           73           62           49           42           35
<gr-thn-eq>200...............  <gr-thn-eq>78.74           75           64           51           44           36
----------------------------------------------------------------------------------------------------------------

Appendix IV to Part 92--Guidelines for Determining Equivalency
Between Emission Measurement Systems

    This appendix describes a series of correlation criteria that
EPA considers to be reasonable for the purpose of demonstrating
equivalency between two test systems designed to measure the same
emissions during FTP locomotive testing. These criteria are
presented here only as guidelines. When requested to make a finding
of equivalency, EPA could base its decision on criteria other than
those listed here, where EPA has reason to believe that these
criteria are not appropriate.
    (a) General approach. (1) Multiple tests should be conducted in
pairs on the same locomotive or engine using each of the measurement
systems.
    (2) Variations for other parameters, such as test fuel, should
be minimized to the maximum extent possible.
    (3) Locomotive and/or locomotive engine tests conducted in
accordance with the provisions of Subpart B of this part are
preferred. Where appropriate, engine tests conducted in accordance
with 40 CFR part 89 may also be used.
    (4) Equivalency of the systems should be determined by comparing
individual modal data, individual cycle-weighted data, and the
average cycle-weighted results from each system.
    (b) Correlation criteria for particulate measurements. (1) The
correlation coefficient (R<SUP>2</SUP>) for individual modal data
should be 0.90, or higher.
    (2) The maximum deviation between any pair of cycle-weighted
data should be 15 percent, or less.
    (3) The ratio of average cycle-weighted results using the
alternate system to the average cycle-weighted results using the
specified Part 92 system (i.e., avg<INF>alt</INF>/avg<INF>spc</INF>)
should be between 0.97 and 1.05.
    (c) Correlation criteria for other measurements. Correlation
parameters for gaseous pollutants should be better than those
specified in paragraph (b) of this appendix for particulate
measurements.
    (d) Minimum number of tests. The recommended minimum number of
tests with each system necessary to determine equivalency is:
    (1) Four 13-mode locomotive or locomotive engine tests,
conducted in accordance with the provisions of subpart B of this
part; or
    (2) Seven 8-mode nonroad engine tests, conducted in accordance
with the provisions of 40 CFR part 89.
    (e) Statistical outliers. Statistical outliers may be excluded
consistent with good engineering judgement. Outliers should be
replaced by rerunning each excluded test point. Where more than one
outlier is excluded, is recommended to perform one additional pair
of tests (in addition to the minimum number specified in paragraph
(d) of this appendix) for each two outliers excluded.

[FR Doc. 98-7769 Filed 4-15-98; 8:45 am]
BILLING CODE 6560-50-P