[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43960-43963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21843]
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DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Part 12
[T.D. 96-64]
RIN 1515-AB94
Emissions Standards for Imported Nonroad Engines
AGENCY: Customs Service, Department of the Treasury.
ACTION: Final rule.
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SUMMARY: This document sets forth amendments to the Customs Regulations
which conform to regulations that have already been adopted by the
Environmental Protection Agency (EPA), in order to ensure the
compliance of imported nonroad engines with applicable EPA emissions
standards required by law.
EFFECTIVE DATE: August 27, 1996.
FOR FURTHER INFORMATION CONTACT: Leo Wells, Trade Compliance Division,
(202-927-0771).
SUPPLEMENTARY INFORMATION:
Background
The Clean Air Act, as amended, (42 U.S.C. 7401 et seq.), which has
long authorized the Environmental Protection Agency (EPA) to regulate
on-highway motor vehicle and engine emissions, was amended in 1990 to
extend EPA's regulatory authority to include as well nonroad engines
and related vehicles and 2 equipment (see 42 U.S.C. 7521-7525, 7541-
7543, 7547, 7549, 7550, 7601(a)). In brief, EPA was given authority,
inter alia, to regulate those categories or classes of new nonroad
engines and associated vehicles and equipment that contribute to air
pollution, if such nonroad emissions have been determined to be
significant.
To this end, the EPA has since conducted the requisite studies, and
issued regulations in 40 CFR parts 89 and 90, which set emission
standards for certain nonroad engines, specifically new nonroad
compression-ignition engines at or above 50 horsepower (37 kilowatts)
(nonroad large CI engines) as well as new nonroad spark-ignition
engines at or below 25 horsepower (19 kilowatts) (nonroad small SI
engines). For a complete discussion of the background and development
of EPA's regulations concerning emissions standards for nonroad large
CI and small SI engines, see 59 FR 31306 (June 17, 1994) and 60 FR
34582 (July 3, 1995), respectively. The Customs Regulations set forth
in this document are applicable to all nonroad engines incorporated
into nonroad vehicles or nonroad equipment imported into the United
States.
Nonconforming nonroad large CI engines may only be imported by
independent commercial importers (ICIs) who hold valid certificates of
conformity issued by the EPA (see Sec. 12.74(c)(2), infra), unless an
exemption or exclusion otherwise applies thereto. The ICI will be
responsible for assuring that subsequent to importation, the nonroad
engine is properly modified and/or tested to comply with EPA emission
and other requirements over its useful life.
By contrast, no ICI program exists for nonconforming nonroad small
SI engines. However, an individual may import on a single occasion up
to three nonconforming nonroad small SI engines, vehicles or equipment
items for personal use (and not for purposes of resale). In fact, with
specific exceptions, nonconforming nonroad small SI engines, vehicles
and equipment are generally not permitted to be imported for resale.
After an individual's limit of three, or after the first importation,
additional small SI engines, vehicles, or equipment are not permitted
importation, unless an exception or exclusion otherwise so provides.
Exemptions or exclusions to the general restrictions on importing
nonconforming nonroad engines are similar to those contained in
Sec. 12.73, Customs Regulations (19 CFR 12.73) for nonconforming motor
vehicles and their engines, and include exemptions for repair and
alteration, testing, precertification, display, national security,
hardship, use in competition, and certain nonroad engines proven to be
identical, in all material respects, to their corresponding U.S.
versions. Furthermore, foreign diplomatic or military personnel on
assignment in the U.S. may import a nonconforming nonroad engine exempt
from emissions requirements. In addition, nonroad engines greater than
20 original production years old are not subject to EPA emissions
requirements.
Accordingly, Customs is amending its regulations to add a new
Sec. 12.74 which conforms to the regulations that have already been
adopted by EPA, in order to ensure the compliance of imported nonroad
engines with applicable EPA emissions standards required by law.
Inapplicability of Public Notice and Comment and Delayed Effective Date
Requirements, the Regulatory Flexibility Act, and Executive Order 12866
Inasmuch as these amendments merely conform the Customs Regulations
to existing law and
[[Page 43961]]
regulation as noted above, pursuant to 5 U.S.C. 553(b)(B), notice and
public procedure thereon are unnecessary and pursuant to 5 U.S.C.
553(d)(3), a delayed effective date is not required. Since this
document is not subject to the notice and public procedure requirements
of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). Nor do these amendments meet
the criteria for a ``significant regulatory action'' under E.O. 12866.
Drafting Information. The principal author of this document was
Russell Berger, Regulations Branch, U.S. Customs Service. However,
personnel from other offices participated in its development.
List of Subjects in 19 CFR Part 12
Customs duties and inspection, Imports, Motor vehicles, Motor
vehicle safety, Nonroad engines, Reporting and recordkeeping
requirements.
Amendments to the Regulations
Part 12, Customs Regulations (19 CFR part 12), is amended as set
forth below.
PART 12--SPECIAL CLASSES OF MERCHANDISE
1. The general authority citation for part 12 continues to read as
follows, and the specific authority for Sec. 12.73 is revised by adding
a reference to Sec. 12.74 to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 20,
Harmonized Tariff Schedule of the United States (HTSUS)), 1624;
* * * * *
Sections 12.73 and 12.74 also issued under 19 U.S.C. 1484, 42
U.S.C. 7522, 7601;
* * * * *
2. Part 12 is amended by revising the undesignated centerhead
preceding Sec. 12.73, and by adding a new Sec. 12.74 following
Sec. 12.73, to read as follows:
Entry of Motor Vehicles, Motor Vehicle Engines and Nonroad Engines
Under the Clean Air Act, As Amended
* * * * *
Sec. 12.74 Nonroad engine compliance with Federal antipollution
emission requirements.
(a) Applicability of EPA requirements. This section is ancillary to
the regulations of the U.S. Environmental Protection Agency (EPA)
issued under the Clean Air Act, as amended (42 U.S.C. 7401 et seq.),
and found in 40 CFR parts 89 and 90. Nothing in this section should be
construed as limiting or changing in any way the applicability of the
EPA regulations. Those regulations should be consulted for more
detailed information concerning EPA emission requirements. These
requirements apply to nonroad combustion-ignition engines at or above
37 kilowatts (kW), and nonroad spark-ignition engines at or below 19
kW. For the purpose of this section, the term ``nonroad engine''
includes all nonroad engines incorporated into nonroad equipment or
nonroad vehicles when imported into the United States.
(b) Importation of complying nonroad engines. (1) Labeled engines.
Nonroad engines which in their condition as imported are covered by an
EPA certificate of conformity and which bear the manufacturer's label
showing such conformity and other EPA-required information shall be
deemed in compliance with applicable emission requirements for the
purpose of Customs admissibility and entry liquidation determinations.
This paragraph does not apply to importations by independent commercial
importers covered by paragraph (c) of this section.
(2) Pending certification. Nonroad engines otherwise covered by
paragraph (b)(1) of this section which were manufactured for compliance
with applicable emission requirements, but for which an application for
a certificate of conformity is pending with the EPA may be
conditionally released from Customs custody pending production of the
certificate of conformity within 120 days of release.
(c) Importation of nonconforming engines.
(1) By other than an independent commercial importer (ICI). Except
for nonroad engines imported in the particular circumstances covered by
paragraphs (d)-(m) of this section, an individual or business, other
than an independent commercial importer (ICI) holding a currently valid
EPA certificate of conformity for the same nonroad engine class and
fuel type as the engine being imported, may not enter into the United
States a nonconforming nonroad engine to which EPA emissions
requirements apply. Individuals and businesses may, however, arrange
for the importation of nonconforming nonroad engines through an ICI. In
these circumstances, the ICI will not act as an agent or broker for
Customs transaction purposes unless otherwise licensed or authorized to
do so.
(2) By an ICI. (i) Definition. Generally, an ICI is an importer
that holds a certificate of conformity from EPA, but that lacks a
contract with a foreign or domestic nonroad engine manufacturer for
distributing nonroad engines into the United States market and cannot
therefore export as an original equipment manufacturer. Further
specific discussion of who qualifies as an ICI is set forth in the EPA
regulations.
(ii) Procedure. An ICI may enter into the United States certain
nonroad engines, only if it holds a currently valid EPA certificate of
conformity for the same nonroad engine class and fuel type as the
nonroad engines being entered. A ``certificate of conformity'' is the
document which is issued by the Administrator, EPA, to the ICI, and
which entitles the ICI to import nonconforming nonroad engines into the
United States, and ensure that such nonroad engines are brought into
conformance with applicable EPA emissions standards. 40 CFR 89.602-96.
(d) Importation of nonconforming spark-ignition engines at or below
19 kW. (1) General. A nonconforming engine at or below 19 kW may not be
imported by any person, business or ICI, except for purposes other than
resale under paragraph (d)(2) of this section, or unless an exemption
or exclusion applies as provided in paragraphs (e)-(m) of this section.
(2) Importation for purposes other than resale. Any individual may
import on a one-time basis 3 or fewer nonconforming spark-ignition
engines at or below 19 kW for purposes other than resale under 40 CFR
90.611. Such an engine may be conditionally admitted without prior EPA
approval and without bond.
(e) Exemptions and exclusions from emissions requirements based on
age of engine. The following nonroad engines may be imported by any
person and do not have to be shown to be in compliance with emissions
requirements before being entitled to admissibility:
(1) All spark-ignition engines greater than 19 kW, unless regulated
under 19 CFR 12.73;
(2) All compression-ignition engines less than 37 kW;
(3) Spark-ignition engines less than or equal to 19 kW originally
manufactured before the 1997 model year;
(4) Compression-ignition engines greater than or equal to 37 kW but
less than 75 kW originally manufactured before January 1, 1998;
(5) Compression-ignition engines greater than or equal to 75 kW but
less than 130 kW originally manufactured before January 1, 1997;
(6) Compression-ignition engines greater than or equal to 130 kW
but less than or equal to 560 kW originally manufactured before January
1, 1996;
(7) Compression-ignition engines greater than 560 kW originally
[[Page 43962]]
manufactured before January 1, 2000; and
(8) Engines not otherwise exempt from EPA emission requirements and
more than 20 years old. (Age is determined by subtracting the calendar
year of production (as opposed to model year) from the calendar year of
importation.)
(f) Exemption for exports. Nonroad engines which will be used in
nonroad vehicles or equipment intended solely for export to a country
which does not have in force emissions standards identical to EPA
standards are exempt from applicable EPA emissions requirements if both
the engine and its container bear a label or tag indicating that it is
intended solely for export. 40 CFR 89.909 and 90.909. The EPA publishes
in the Federal Register a list of foreign countries that have emissions
standards identical to EPA standards.
(g) Exemptions for diplomats, foreign military personnel and
nonresidents. Subject to the conditions that they are not resold in the
United States and are subsequently exported or destroyed or brought
into conformity with EPA emissions requirements, the following nonroad
engines are exempt from EPA emission requirements:
(1) A nonroad engine imported solely for the personal use of a
nonresident importer or consignee where the use will not exceed one
year and the engine subsequently will be exported; and
(2) A nonroad engine of a member of the armed forces of a foreign
country on assignment in the United States, or of a member of the
personnel of a foreign government on assignment in the United States or
other individual who comes within the class of persons for whom free
entry of nonroad engines has been authorized by the Department of
State. For special documentation requirements, see paragraph (n)(4) of
this section.
(h) Exemption for repairs or alterations. An engine may be imported
by anyone solely for repairs or alterations. Under this exemption, the
engine may not be sold or leased in the United States. 40 CFR 89.611-
96(b)(1) and 90.612(b)(1).
(i) Testing exemption. An engine may be imported by anyone solely
for testing. Such engine may only be operated as an integral part of
the test. 40 CFR 89.611-96(b)(2) and 90.612(b)(2). This exemption is
limited to a period not exceeding one year from the date of importation
unless a request is made under 40 CFR 89.905(f) or 90.905(f), as
applicable, for a one-year extension.
(j) Precertification exemption. An engine may be imported by an
individual as well as by an ICI for use as a prototype in applying for
EPA certification, unless otherwise specified. 40 CFR 89.611-96(b)(3)
and 89.906. Unless the engine is brought into conformity within 180
days from the date of entry, it shall be exported or otherwise disposed
of subject to paragraph (q) of this section.
(k) Display exemption. An engine may be imported by anyone solely
for display in relation to a business or the public interest, as
determined by EPA, if the engine will not be sold in the United States.
This exemption is limited to a period of 12 months or for the duration
of the display, whichever is shorter. Two extensions are available of
up to 12 months each, if approved by EPA, but, in no case may the total
extension period exceed 36 months. 40 CFR 89.611-96(b)(4) and
90.612(b)(3).
(l) Exemption for engines identical to U.S.-certified versions. An
engine may be imported by its owner other than for resale if it is
proven to be identical, in all material respects, to an engine
certified by the original manufacturer for sale in the United States.
40 CFR 89.611-96(c)(3) and 90.612(c)(3).
(m) Exemptions and exclusions based on prior EPA approval. The
following exemptions or exclusions from EPA emission standards apply to
nonroad engines, if prior approval has been obtained in writing from
EPA:
(1) Competition exemption. An engine may be imported for use to
propel a vehicle or to power equipment used solely for competition. 40
CFR 89.611-96(e) and 90.612(e);
(2) National security exemption. An engine that received a national
security exemption in writing from EPA may be imported. 40 CFR 89.611-
96(c)(1), 89.908, 90.612(c)(1) and 90.908; and
(3) Hardship exemption. An engine that received a hardship
exemption in writing from EPA may be imported. 40 CFR 89.911-96(c)(2)
and 90.612(c)(2).
(n) Documentation requirements. (1) Exception for conforming
engines. The special documentation requirements of paragraphs (n)(2)
and (n)(3) of this section do not apply to the entry into the United
States of any nonroad engines shown to be in compliance with applicable
emission requirements under paragraph (b)(1) of this section relating
to labeling.
(2) Declarations of other importers. Release from Customs custody
shall be refused with respect to all entries of nonconforming nonroad
engines into the United States unless there is filed with the entry in
duplicate a declaration in which the importer or consignee declares or
affirms its status as an original equipment manufacturer, an ICI
holding a relevant certificate of conformity, an individual importer,
or other status, and further declares or affirms the status or
condition of the imported engines and the circumstances concerning
importation including a citation to the specific paragraph in this
section upon which application for conditional or final release from
Customs custody is made.
(3) Other documentation and information. The EPA requires, pursuant
to its regulations at 40 CFR 89.604(a) and 40 CFR 90.604(c), that the
following information shall be included or submitted with the
importer's declaration:
(i) The importer's name, address and telephone number;
(ii) Identification of the engine, including the unique engine
number, the engine owner's taxpayer identification number, and his or
her current address and telephone number in the United States if
different from that provided in paragraph (n)(3)(i) of this section;
(iii) Identification, where applicable, of the place where the
engine will be stored until EPA approval of the importer's application
to EPA for final admission;
(iv) Authorization for EPA enforcement officers to conduct
inspections or testing otherwise permitted by the Clean Air Act and
regulations promulgated thereunder;
(v) Identification, in the case of importation by an ICI, of the
certificate of conformity by means of which the engine is being
imported;
(vi) The date of manufacture of the engine;
(vii) The date of entry;
(viii) Identification of the vessel or carrier on which the
merchandise was shipped;
(ix) The entry number, where applicable;
(x) Where prior written approval from EPA is required for an
exemption or exclusion, a statement to the effect that such EPA
approval has been given; and
(xi) Such other further information as may be required by the EPA.
(4) Documentation from diplomats or foreign military personnel. For
entries for which an exemption is claimed under paragraph (g)(2) of
this section, a statement must also be included with the declaration,
identifying and describing the engine importer's official orders, if
any, or, giving the name of the embassy to which the importer is
accredited if the importer is a qualifying member of the personnel of a
foreign government on assignment in the United States.
[[Page 43963]]
(5) Retention and submission of records to Customs. Documents
supporting the information contained in or accompanying the declaration
as set forth in paragraphs (n) (2)-(4) of this section must be retained
by the importer for a period of at least 5 years from the date of
entry, or withdrawal from warehouse, for consumption of the nonroad
engine (see Sec. 162.1c of this chapter), and shall be provided to
Customs upon request.
(o) Release under bond. If a declaration filed in accordance with
paragraph (n)(2) of this section states that the entry is being filed
under circumstances described in either paragraph (h), (i), (j), or (k)
of this section, the entry shall be accepted only if the importer or
consignee gives a bond on Customs Form 301, containing the bond
conditions set forth in Sec. 113.62 of this chapter for the production
of an EPA statement that the engine is in conformity with Federal
emission requirements. Within the period in paragraph (i) or (j) of
this section, or in the case of paragraph (h) or (k) of this section,
the period specified by EPA in its authorization for an exemption, or
such additional period as the port director of Customs may allow for
good cause shown, the importer or consignee shall deliver to the port
director the prescribed statement. If the statement is not delivered to
the director of the port of entry within the specified period, the
importer or consignee shall deliver or cause to be delivered to the
port director those engines which were released under a bond required
by this paragraph. In the event that the engine is not redelivered
within 5 days following the specified period, liquidated damages shall
be assessed in the full amount of the bond, if it is a single entry
bond, or if a continuous bond is used, the amount that would have been
taken under a single entry bond. Liquidated damages under the bond
generally would be equal to 3 times the value of the merchandise
involved in the default (see Sec. 113.62(k) of this chapter).
(p) Notice of inadmissibility or detention. If an engine is
determined to be inadmissible before release from Customs custody, or
inadmissible after release from Customs custody, the importer or
consignee shall be notified in writing of the inadmissibility
determination and/or redelivery requirement. However, if an engine
cannot be released from Customs custody merely because the importer has
failed to furnish with the entry the information required by paragraph
(n) of this section, the engine shall be held in detention by the port
director for a period not to exceed 30 days after filing of the entry
at the risk and expense of the importer pending submission of the
missing information. An additional 30-day extension may be granted by
the port director upon application for good cause shown. If at the
expiration of a period not over 60 days the required documentation has
not been filed, a notice of inadmissibility will be issued.
(q) Disposal of engines not entitled to admission. An engine denied
admission under any provision of this section shall be disposed of in
accordance with applicable Customs laws and regulations. However, an
engine will not be disposed of in a manner in which it may ultimately
either directly or indirectly reach a consumer in a condition in which
it is not in conformity with applicable EPA emission requirements.
(r) Prohibited importations. The importation of nonroad engines
otherwise than in accordance with this section and the regulations of
EPA in 40 CFR parts 89 and 90 is prohibited.
George J. Weise,
Commissioner of Customs.
Approved: June 24, 1996.
Dennis M. O'Connell,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-21843 Filed 8-26-96; 8:45 am]
BILLING CODE 4820-02-P
