Control of Emissions of Air Pollution From Nonroad Diesel Engines and Fuel [pp. 39207-39256]

[Federal Register: June 29, 2004 (Volume 69, Number 124)]
[Rules and Regulations]
[Page 39207-39256]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jn04-26]

[[pp. 39207-39256]]
Control of Emissions of Air Pollution From Nonroad
Diesel Engines and Fuel

[[Continued from page 39206]]

[[Page 39207]]

supplied on the VAR formula record or in the form of computer printouts
or other comparable VAR supporting documentation. No concentration
setting is permitted above the maximum recommended concentration
supplied by the additive manufacturer, except as described in paragraph
(f)(1)(vii) of this section.
(vi) The dates of the VAR period, which shall be no longer than
thirty-one days. If the VAR period is contemporaneous with a calendar
month, then specifying the month will fulfill this requirement; if not,
then the beginning and ending dates and times of the VAR period must be
listed. The times may be supplied on the VAR formula record or in
supporting documentation. Any adjustment to any static dissipater
additive package concentration rate initially set in the VAR period
shall terminate that VAR period and initiate a new VAR period, except
as provided in paragraph (f)(1)(vii) of this section.
(vii) The concentration setting for a static dissipater additive
package injector may be changed from the concentration initially set in
the VAR period without terminating that VAR period, provided that:
(A) The purpose of the change is to correct a batch under-
additization prior to the end of the VAR period and prior to the
transfer of the batch to another party, or to correct an equipment
malfunction where there has been no over-additization of the additive;
(B) The concentration is immediately returned after the correction
to a concentration that fulfills the requirements of this paragraph (f);
(C) The blender creates and maintains documentation establishing
the date and adjustments of the correction; and
(D) If the correction is initiated only to rectify an equipment
malfunction, and the amount of static dissipater additive package used
in this procedure is not added to MVNRLM diesel fuel within the
compliance period, then this amount is subtracted from the static
dissipater additive package volume listed on the VAR formula record. In
such a case, the addition of this amount of static dissipater additive
must be reflected in the following VAR period.
(viii) The measured sulfur level for each batch of MVNRLM diesel
fuel to which a static dissipater additive package is added during each
VAR period. In cases where the storage tank that contains MVNRLM diesel
fuel prior to additization contains multiple fuel batches, a measured
sulfur level on each batch added to the storage tank during the current
and previous VAR periods must be recorded.
(2) Non-automated facilities. In the case of a facility in which
hand blending or any other non-automated method is used to blend static
dissipater additive packages, for each static dissipater additive
package and for each batch of MVNRLM diesel fuel to which the static
dissipater additive package is being added, the following shall be
recorded:
(i) The manufacturer and commercial identifying name of the static
dissipater additive package being reconciled, the maximum recommended
treatment level, the potential contribution to the sulfur content of
the finished fuel that might result when the fuel is used at its
maximum recommended treatment level, the intended treatment level, and
the contribution to the sulfur content of the finished fuel that would
result when the additive package is used at its intended treatment level.
(A) The maximum recommended treatment level and the intended
treatment level must be expressed in terms of gallons of static
dissipater additive package per thousand gallons of MVNRLM diesel fuel,
and expressed to four significant figures.
(B) If the static dissipater additive package storage system which
is the subject of the VAR formula record is a proprietary system under
the control of a customer, this fact must be indicated on the record.
(ii) The date of the additization that is the subject of the VAR
formula record.
(iii) The volume of added static dissipater additive package.
(iv) The volume of the MVNRLM diesel fuel to which the static
dissipater additive package has been added.
(v) The brand (if known) of MVNRLM diesel fuel.
(vi) The actual static dissipater additive package concentration,
calculated as the volume of added static dissipater additive package
(pursuant to paragraph (f)(1)(ii)(B) of this section), divided by the
volume of MVNRLM diesel fuel (pursuant to paragraph (f)(1)(iii) of this
section). The concentration must be calculated and recorded to four
significant figures.
(vii) The measured sulfur level for each batch of MVNRLM diesel
fuel to which a static dissipater additive package is added during each
VAR period. In cases where the storage tanks that contains MVNRLM
diesel fuel prior to additization contains multiple fuel batches, a
measured sulfur level on each batch added to the storage tank during
the current and previous VAR periods must be recorded.
(3) VAR formula records. Every VAR formula record created pursuant
to paragraphs (f)(1) and (f)(2) of this section shall contain the
following:
(i) The signature of the creator of the VAR record;
(ii) The date of the creation of the VAR record; and
(iii) A certification of correctness by the creator of the VAR record.
(4) Electronically-generated VAR formula and supporting records.
(i) Electronically-generated records are acceptable for VAR formula
records and supporting documentation (including PTDs), provided that
they are complete, accessible, and easily readable. VAR formula records
must also be stored with access and audit security, which must restrict
to a limited number of specified people those who have the ability to
alter or delete the records. In addition, parties maintaining records
electronically must make available to EPA the hardware and software
necessary to review the records.
(ii) Electronically-generated VAR formula records may use an
electronic user identification code to satisfy the signature
requirements of paragraph (f)(3)(i) of this section, provided that:
(A) The use of the identification is limited to the record creator;
and
(B) A paper record is maintained, which is signed and dated by the
VAR formula record creator, acknowledging that the use of that
particular user ID on a VAR formula record is equivalent to his/her
signature on the document.
(5) Calibration requirements for automated blending facilities.
Automated static dissipater additive package blenders must calibrate
their static dissipater additive package equipment at least once in
each calendar half year, with the acceptable calibrations being no less
than one hundred twenty days apart, except that calibrations may be
closer in time so long as at least two calibrations meet the
requirements to be in separate halves of the calendar year and no less
than 120 days apart. Equipment recalibration is also required each time
the static dissipater additive package is changed, unless written
documentation indicates that the new static dissipater additive package
has the same viscosity as the previous static dissipater additive
package. Static dissipater package change calibrations may be used to
satisfy the semiannual requirement provided that the calibrations occur
in the appropriate half calendar year and are no less than one hundred
twenty days apart.
(6) Additional VAR documentation. The following VAR supporting
documentation must also be created and maintained:

[[Page 39208]]

(i) For all automated static dissipater additive package blending
facilities, documentation reflecting performance of the calibrations
required by paragraph (f)(5) of this section, and any associated
adjustments of the automated static dissipater additive package
injection equipment;
(ii) For all static dissipater additive package blending
facilities, product transfer documents for all static dissipater
additive packages, and static dissipater-additized MVNRLM diesel fuel
transferred into or out of the facility;
(iii) For all automated static dissipater additive package blending
facilities, documentation establishing the brands (if known) of the
MVNRLM diesel fuel which is the subject of the VAR formula record; and
(iv) For all hand blending static dissipater additive package
blenders, the documentation, if in the party's possession, supporting
the volumes of MVNRLM diesel fuel and static dissipater additive
package reported on the VAR formula record.
(7) Document retention and availability. All static dissipater
additive package blenders shall retain the documents required under
this section for a period of five years from the date the VAR formula
records and supporting documentation are created, and shall deliver
them upon request to the EPA Administrator or the Administrator's
authorized representative.
(i) Except as provided in paragraph (f)(7)(iii) of this section,
automated static dissipater additive package blender facilities and
hand-blender facilities which are terminals, which physically blend
static dissipater additive packages into MVNRLM diesel fuel, must make
immediately available to EPA, upon request, the preceding twelve months
of VAR formula records plus the preceding two months of VAR supporting
documentation.
(ii) Except as provided in paragraph (f)(7)(iii) of this section,
other hand-blending static dissipater additive package facilities which
physically blend static dissipater additive package into MVNRLM diesel
fuel must make immediately available to EPA, upon request, the
preceding two months of VAR formula records and VAR supporting
documentation.
(iii) Facilities which have centrally maintained records at other
locations, or have customers who maintain their own records at other
locations for their proprietary static dissipater additive package
injection systems, and which can document this fact to the Agency, may
have until the start of the next business day after the EPA request to
supply VAR supporting documentation, or longer if approved by the Agency.
(iv) In this paragraph (f)(7), the term ``immediately available''
means that the records must be provided, electronically or otherwise,
within approximately one hour of EPA's request, or within a longer time
frame as approved by EPA.

? 72. A new Sec. 80.615 is added to read as follows:

Sec. 80.615 What penalties apply under this subpart?

(a) Any person liable for a violation under Sec. 80.612 is subject
to civil penalties as specified in section 205 of the Clean Air Act (42
U.S.C. 7524) for every day of each such violation and the amount of
economic benefit or savings resulting from each violation.
(b)(1) Any person liable under Sec. 80.612(a)(1) for a violation
of an applicable standard or requirement under this Subpart I or for
causing another party to violate such standard or requirement, is
subject to a separate day of violation for each and every day the non-
complying diesel fuel remains any place in the distribution system.
(2) Any person liable under Sec. 80.612(a)(2) for causing motor
vehicle diesel fuel, NRLM diesel fuel, heating oil, or other distillate
fuel to be in the distribution system which does not comply with an
applicable standard or requirement of this Subpart I is subject to a
separate day of violation for each and every day that the non-complying
diesel fuel remains any place in the diesel fuel distribution system.
(3) Any person liable under Sec. 80.612(a)(1) for blending into
diesel fuel an additive violating the applicable sulfur standard
pursuant to the requirements of Sec. 80.521(a) or (b), as applicable,
or of causing another party to so blend such an additive, is subject to
a separate day of violation for each and every day the motor vehicle
diesel fuel or NRLM diesel fuel into which the noncomplying additive
was blended, remains any place in the fuel distribution system.
(4) For purposes of this paragraph (b) of this section, the length
of time the motor vehicle diesel fuel, NRLM diesel fuel, heating oil or
other distillate fuel in question remained in the diesel fuel
distribution system is deemed to be 25 days, unless a person subject to
liability or EPA demonstrates by reasonably specific showings, by
direct or circumstantial evidence, that the non-complying motor
vehicle, NR or NRLM diesel fuel, heating oil or distillate fuel
remained in the distribution system for fewer than or more than 25
days.
(c) Any person liable under Sec. 80.612(b) for failure to meet, or
causing a failure to meet, a provision of this subpart is liable for a
separate day of violation for each and every day such provision remains
unfulfilled.

? 73. Section 80.620 is amended by revising the section heading and
paragraphs (a), (b), (c), (d)(2), (d)(3)(i)(D), (e)(1), (f)(2)(ii)
introductory text, (f)(3)(ii), (g), (h) introductory text, (h)(2),
(i)(1)(v), (i)(1)(vi), (i)(5), (j), (k)(1), (k)(3), (n), (o), (p), (q),
(r), and (s) to read as follows:

Sec. 80.620 What are the additional requirements for diesel fuel or
distillates produced by foreign refineries subject to a temporary
refiner compliance option, hardship provisions, or motor vehicle or
NRLM diesel fuel credit provisions?

(a) Definitions. (1) A foreign refinery is a refinery that is
located outside the United States, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, and the Commonwealth of the
Northern Mariana Islands (collectively referred to in this section as
``the United States'').
(2) A foreign refiner is a person who meets the definition of
refiner under Sec. 80.2(i) for a foreign refinery.
(3) A diesel fuel program foreign refiner (``DFR'') is a foreign
refiner that has been approved by EPA for participation in any motor
vehicle diesel fuel or NRLM diesel fuel provision of Sec. 80.530
through 80.533, or Sec. Sec. 80.535, 80.536, 80.540, 80.552, 80.553,
80.554, 80.560 or 80.561 (collectively referred to as ``diesel foreign
refiner program'').
(4) ``DFR-Diesel'' means diesel fuel or distillate fuel as
applicable under subpart I of this part produced at a DFR refinery that
is imported into the United States.
(5) ``Non-DFR-Diesel'' means diesel fuel or distillate fuel that is
produced at a foreign refinery that has not been approved as a DFR
foreign refiner, diesel fuel produced at a DFR foreign refinery that is
not imported into the United States, and diesel fuel produced at a DFR
foreign refinery during a period when the foreign refiner has opted to
not participate in the DFR-Diesel foreign refiner program under
paragraph (c)(3) of this section.
(6) ``Certified DFR-Diesel'' means DFR-Diesel the foreign refiner
intends to include in the foreign refinery's compliance calculations
under any provisions of Sec. 80.530 through 80.533, or Sec. Sec.
80.535, 80.536, 80.540, 80.552, 80.553, 80.554, 80.560 or 80.561 and
does include in these compliance calculations when reported to EPA.
(7) ``Non-Certified DFR-Diesel'' means DFR-Diesel fuel that a DFR
foreign

[[Page 39209]]

refiner imports to the United States that is not Certified DFR-Diesel.
(b) Baseline. For any foreign refiner to obtain approval under the
diesel foreign refiner program of this subpart for any refinery, it
must apply for approval under the applicable provisions of this
subpart. To obtain approval the refiner is required, as applicable, to
demonstrate a volume baseline under subpart I of this part.
(1) The refiner shall follow the procedures, applicable to volume
baselines and using diesel fuel, or if applicable, heating oil, instead
of gasoline, in Sec. Sec. 80.91 through 80.93 to establish the volume
of motor vehicle diesel fuel that was produced at the refinery and
imported into the United States during the applicable years for
purposes of establishing a baseline under Subpart I for applicable
fuels produced for use in the United States.
(2) In making determinations for foreign refinery baselines EPA
will consider all information supplied by a foreign refiner, and in
addition may rely on any and all appropriate assumptions necessary to
make such determinations.
(3) Where a foreign refiner submits a petition that is incomplete
or inadequate to establish an accurate baseline, and the refiner fails
to correct this deficiency after a request for more information, EPA
will not assign an individual refinery baseline.
(c) General requirements for DFR foreign refiners. A foreign
refiner of a refinery that is approved under the diesel foreign refiner
program of this subpart must designate each batch of diesel fuel
produced at the foreign refinery that is exported to the United States
as either Certified DFR-Diesel or as Non-Certified DFR-Diesel, except
as provided in paragraph (c)(3) of this section. It must further
designate all Certified DFR-Diesel as provided in Sec. 80.598, and
designate whether the diesel fuel is dyed or undyed, and for heating
oil and/or locomotive or marine diesel fuel whether it is marked or
unmarked under Sec. 80.510(d) through (f). It must further designate
any credits earned as either nonroad diesel credits or motor vehicle
diesel credits.
(1) In the case of Certified DFR-Diesel, the foreign refiner must
meet all requirements that apply to refiners under this subpart, except
that:
(i) For purposes of complying with the compliance option
requirements of Sec. 80.530, motor vehicle diesel fuel produced by a
foreign refinery must comply separately for each Credit Trading Area of
import, as defined in Sec. 80.531(a)(5).
(ii) For purposes of complying with the compliance option
requirements of Sec. 80.530, credits obtained from any other refinery
or from any importer must have been generated in the same Credit
Trading Area as the Credit Trading Area of import of the fuel for which
credits are needed to achieve compliance.
(iii) For purposes of generating credits under Sec. 80.531,
credits shall be generated separately by Credit Trading Area of import
and shall be designated by Credit Trading Area of importation and by
port of importation.
(2) In the case of Non-Certified DFR-Diesel, the foreign refiner
shall meet all the following requirements:
(i) The designation requirements in this section.
(ii) The reporting requirements in this section and in Sec. Sec.
80.593, 80.594, 80.601, and 80.604.
(iii) The product transfer document requirements in this section
and in Sec. Sec. 80.590 and 80.591.
(iv) The prohibitions in this section and in Sec. 80.610.
(3)(i) Any foreign refiner that has been approved to produce diesel
fuel subject to the diesel foreign refiner program for a foreign
refinery under this subpart may elect to classify no diesel fuel
imported into the United States as DFR-Diesel provided the foreign
refiner notifies EPA of the election no later than 60 calendar days
prior to the beginning of the compliance period.
(ii) An election under paragraph (c)(3)(i) of this section shall be
for a 12 month compliance period and apply to all diesel fuel that is
produced by the foreign refinery that is imported into the United
States, and shall remain in effect for each succeeding year unless and
until the foreign refiner notifies EPA of the termination of the
election. The change in election shall take effect at the beginning of
the next annual compliance period.
* * * * *
(d) * * *
(2) On each occasion when any person transfers custody or title to
any DFR-Diesel prior to its being imported into the United States, it
must include the following information as part of the product transfer
document information in this section:
(i) Designation of the diesel fuel or distillate as Certified DFR-
Diesel or as Non-Certified DFR-Diesel, and if it is Certified DFR-
Diesel, further designate the fuel pursuant to Sec. 80.598, and
whether the diesel fuel or distillate is dyed or undyed, and for
heating oil whether it is marked or unmarked under Sec. 80.510(d)
through (f), and all other applicable product transfer document
information required under Sec. 80.590; and
(ii) The name and EPA refinery registration number (under Sec.
80.597) of the refinery where the DFR-Diesel was produced.
(3) * * *
(i) * * *
(D) In the case of Certified DFR-Diesel:
(1) The sulfur content as determined under paragraph (f) of this
section, and the applicable designations stated in paragraph (d)(2)(i)
of this section; and
(2) A declaration that the DFR-Diesel is being included in the
applicable compliance calculations required by EPA under this subpart.
* * * * *
(e) * * *
(1)(i) The foreign refiner excludes:
(A) The volume of diesel from the refinery's compliance report
under Sec. 80.593, Sec. 80.601, or Sec. 80.604; and
(B) In the case of Certified DFR-Diesel, the volume of the diesel
fuel from the compliance report under Sec. 80.593, Sec. 80.601, or
Sec. 80.604.
(ii) The exclusions under paragraph (e)(1)(i) of this section shall
be on the basis of the designations under Sec. 80.598 and this
section, and volumes determined under paragraph (f) of this section.
* * * * *
(f) * * *
(2) * * *
(ii) Determine the sulfur content value for each compartment, and
if applicable, the marker content under Sec. 80.510(d) through (f)
using an approved methodology as specified in Sec. Sec. 80.580 through
80.586 by one of the following:
* * * * *
(3) * * *
(ii) To the Administrator containing the information required under
paragraphs (f)(1) and (f)(2) of this section, within thirty days
following the date of the independent third party's inspection. This
report shall include a description of the method used to determine the
identity of the refinery at which the diesel fuel or distillate was
produced, assurance that the diesel fuel or distillate remained
segregated as specified in paragraph (n)(1) of this section, and a
description of the diesel fuel's movement and storage between
production at the source refinery and vessel loading.
* * * * *
(g) Comparison of load port and port of entry testing. (1)(i) Any
foreign refiner and any United States importer of Certified DFR-Diesel
shall compare the results from the load port testing under paragraph
(f) of this section, with the port of entry testing as reported under
paragraph (o) of this section, for the

[[Page 39210]]

volume of diesel fuel and the sulfur content value; except as specified
in paragraph (g)(1)(ii) of this section.
(ii) Where a vessel transporting Certified DFR-Diesel off loads
this diesel fuel at more than one United States port of entry, and the
conditions of paragraph (g)(2)(i) of this section are met at the first
United States port of entry, the requirements of paragraph (g)(2) of
this section do not apply at subsequent ports of entry if the United
States importer obtains a certification from the vessel owner that
meets the requirements of paragraph (s) of this section, that the
vessel has not loaded any diesel fuel or blendstock between the first
United States port of entry and the subsequent port of entry.
(2)(i) The requirements of this paragraph (g)(2) apply if--
(A) The temperature-corrected volumes determined at the port of
entry and at the load port differ by more than one percent; or
(B) The sulfur content value determined at the port of entry is
higher than the sulfur content value determined at the load port, and
the amount of this difference is greater than the reproducibility
amount specified for the port of entry test result by the American
Society of Testing and Materials (ASTM) for a test method used for
testing the port of entry sample under the provisions Sec. Sec. 80.580
through 80.586.
(ii) The United States importer and the foreign refiner shall treat
the diesel fuel as Non-Certified DFR-Diesel, and the foreign refiner
shall exclude the diesel fuel volume from its diesel fuel volumes
calculations and sulfur standard designations under Sec. 80.598.
(h) Attest requirements. Refiners, for each annual compliance
period, must arrange to have an attest engagement performed of the
underlying documentation that forms the basis of any report required
under this subpart. The attest engagement must comply with the
procedures and requirements that apply to refiners under Sec. Sec.
80.125 through 80.130, or other applicable attest engagement
provisions, and must be submitted to the Administrator of EPA by August
31 of each year for the prior annual compliance period. The following
additional procedures shall be carried out for any foreign refiner of
DFR-Diesel.
* * * * *
(2) Obtain separate listings of all tenders of Certified DFR-Diesel
and of Non-Certified DFR-Diesel, and obtain separate listings of
Certified DFR-Diesel based on whether it is 15 ppm sulfur content
diesel fuel, 500 ppm sulfur content diesel fuel or high sulfur fuel
having a sulfur content greater than 500 ppm (and if so, whether the
fuel is heating oil, small refiner diesel fuel, diesel fuel produced
through the use of credits, or other applicable designation under Sec.
80.598). Agree the total volume of tenders from the listings to the
diesel fuel inventory reconciliation analysis in Sec. 80.128(b), and
to the volumes determined by the third party under paragraph (f)(1) of
this section.
* * * * *
(i) * * *
(1) * * *
(v) Inspections and audits by EPA may include review and copying of
any documents related to:
(A) Refinery baseline establishment, if applicable, including the
volume, sulfur content and dye and marker status of diesel fuel,
heating oil and other distillates; transfers of title or custody of any
diesel fuel, heating oil or blendstocks whether DFR-Diesel or Non-DFR-
Diesel, produced at the foreign refinery during the period January 1,
1998 through the date of the refinery baseline petition or through the
date of the inspection or audit if a baseline petition has not been
approved, and any work papers related to refinery baseline
establishment;
(B) The volume and sulfur content of DFR-Diesel;
(C) The proper classification of diesel fuel as being DFR-Diesel or
as not being DFR-Diesel, or as Certified DFR-Diesel or as Non-Certified
DFR-Diesel, and all other relevant designations under this subpart,
including Sec. 80.598 and this section;
(D) Transfers of title or custody to DFR-Diesel;
(E) Sampling and testing of DFR-Diesel;
(F) Work performed and reports prepared by independent third
parties and by independent auditors under the requirements of this
section, including work papers; and
(G) Reports prepared for submission to EPA, and any work papers
related to such reports.
(vi) Inspections and audits by EPA may include taking samples of
diesel fuel, heating oil, other distillates, diesel fuel additives or
blendstock, dyes and chemical markers and interviewing employees.
* * * * *
(5) Submitting a petition for participation in the diesel foreign
refiner program or producing and exporting diesel fuel or heating oil
under any such program, and all other actions to comply with the
requirements of this subpart relating to participation in any diesel
foreign refiner program, or to establish an individual refinery motor
vehicle diesel fuel volume baseline or other baseline under subpart I
of this part (if applicable) constitute actions or activities that
satisfy the provisions of 28 U.S.C. 1605(a)(2), but solely with respect
to actions instituted against the foreign refiner, its agents and
employees in any court or other tribunal in the United States for
conduct that violates the requirements applicable to the foreign
refiner under this subpart, including conduct that violates the False
Statements Accountability Act of 1996 (18 U.S.C. 1001) and section
113(c)(2) of the Clean Air Act (42 U.S.C. 7413).
* * * * *
(j) Sovereign immunity. By submitting a petition for participation
in any diesel foreign refiner program under this subpart (and baseline,
if applicable) under this section, or by producing and exporting diesel
fuel to the United States under any such program, the foreign refiner,
and its agents and employees, without exception, become subject to the
full operation of the administrative and judicial enforcement powers
and provisions of the United States without limitation based on
sovereign immunity, with respect to actions instituted against the
foreign refiner, its agents and employees in any court or other
tribunal in the United States for conduct that violates the
requirements applicable to the foreign refiner under this subpart
including conduct that violates the False Statements Accountability Act
of 1996 (18 U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42
U.S.C. 7413).
(k) * * *
(1) The foreign refiner shall post a bond of the amount calculated
using the following equation:

Bond = G x $ 0.01

Where:

Bond = amount of the bond in U.S. dollars
G = the applicable volume baseline under Subpart I for diesel fuel
or distillate produced at the foreign refinery and exported to the
United States, in gallons.
* * * * *
(3) Bonds posted under this paragraph (k) shall--
(i) Be used to satisfy any judicial judgment that results from an
administrative or judicial enforcement action for conduct in violation
of this subpart, including where such conduct violates the False
Statements Accountability Act of 1996 (18 U.S.C. 1001) and section
113(c)(2) of the Clean Air Act (42 U.S.C. 7413);
(ii) Be provided by a corporate surety that is listed in the United
States

[[Page 39211]]

Department of Treasury Circular 570 ``Companies Holding Certificates of
Authority as Acceptable Sureties on Federal Bonds;'' and
(iii) Include a commitment that the bond will remain in effect for
at least five years following the end of latest annual reporting period
that the foreign refiner produces diesel fuel pursuant to the
requirements of this subpart.
* * * * *
(n) Prohibitions. (1) No person may combine Certified DFR-Diesel
with any Non-Certified DFR-Diesel or Non-DFR-Diesel, and no person may
combine Certified DFR-Diesel with any Certified DFR-Diesel produced at
a different refinery, until the importer has met all the requirements
of paragraph (o) of this section, except as provided in paragraph (e)
of this section. No person may violate the product segregation
requirements of Sec. 80.511.
(2) No foreign refiner or other person may cause another person to
commit an action prohibited in paragraph (n)(1) of this section, or
that otherwise violates the requirements of this section.
(o) United States importer requirements. Any United States importer
shall meet the following requirements:
(1) Each batch of imported diesel fuel and heating oil shall be
classified by the importer as being DFR-Diesel or as Non-DFR-Diesel,
and each batch classified as DFR-Diesel shall be further classified as
Certified DFR-Diesel or as Non-Certified DFR-Diesel, and each batch of
Certified DFR-Diesel shall be further designated pursuant to the
designation requirements of Sec. 80.598 and this section.
(2) Diesel fuel shall be classified as Certified DFR-Diesel or as
Non-Certified DFR-Diesel according to the designation by the foreign
refiner if this designation is supported by product transfer documents
prepared by the foreign refiner as required in paragraph (d) of this
section, unless the diesel fuel is classified as Non-Certified DFR-
Diesel under paragraph (g) of this section. Additionally, the importer
shall comply with all requirements of this subpart applicable to
importers.
(3) For each diesel fuel batch classified as DFR-Diesel, any United
States importer shall perform the following procedures.
(i) In the case of both Certified and Non-Certified DFR-Diesel,
have an independent third party:
(A) Determine the volume of diesel fuel in the vessel;
(B) Use the foreign refiner's DFR-Diesel certification to determine
the name and EPA-assigned registration number of the foreign refinery
that produced the DFR-Diesel;
(C) Determine the name and country of registration of the vessel
used to transport the DFR-Diesel to the United States; and
(D) Determine the date and time the vessel arrives at the United
States port of entry.
(ii) In the case of Certified DFR-Diesel, have an independent third
party:
(A) Collect a representative sample from each vessel compartment
subsequent to the vessel's arrival at the United States port of entry
and prior to off loading any diesel fuel from the vessel;
(B) Obtain the compartment samples; and
(C) Determine the sulfur content value, and if applicable, the
marker content, of each compartment sample using an appropriate
methodology as specified in Sec. Sec. 80.580 through 80.586 by the
third party analyzing the sample or by the third party observing the
importer analyze the sample.
(4) Any importer shall submit reports within 30 days following the
date any vessel transporting DFR-Diesel arrives at the United States
port of entry:
(i) To the Administrator containing the information determined
under paragraph (o)(3) of this section; and
(ii) To the foreign refiner containing the information determined
under paragraph (o)(3)(ii) of this section, and including
identification of the port and Credit Trading Area at which the product
was offloaded.
(5) Any United States importer shall meet the requirements
specified in Sec. Sec. 80.510 and 80.520 and all other requirements of
this subpart, for any imported diesel fuel or heating oil that is not
classified as Certified DFR-Diesel under paragraph (o)(2) of this section.
(p) Truck imports of Certified DFR-Diesel produced at a foreign
refinery. (1) Any refiner whose Certified DFR-Diesel is transported
into the United States by truck may petition EPA to use alternative
procedures to meet the following requirements:
(i) Certification under paragraph (d)(5) of this section;
(ii) Load port and port of entry sampling and testing under
paragraphs (f) and (g) of this section;
(iii) Attest under paragraph (h) of this section; and
(iv) Importer testing under paragraph (o)(3) of this section.
(2) These alternative procedures must ensure Certified DFR-Diesel
remains segregated from Non-Certified DFR-Diesel and from Non-DFR-
Diesel until it is imported into the United States. The petition will
be evaluated based on whether it adequately addresses the following:
(i) Provisions for monitoring pipeline shipments, if applicable,
from the refinery, that ensure segregation of Certified DFR-Diesel from
that refinery from all other diesel fuel;
(ii) Contracts with any terminals and/or pipelines that receive
and/or transport Certified DFR-Diesel, that prohibit the commingling of
Certified DFR-Diesel with any of the following:
(A) Other Certified DFR-Diesel from other refineries.
(B) All Non-Certified DFR-Diesel.
(C) All Non-DFR-Diesel.
(D) All diesel fuel or heating oil products required to be
segregated under this subpart;
(iii) Procedures for obtaining and reviewing truck loading records
and United States import documents for Certified DFR-Diesel to ensure
that such diesel fuel is only loaded into trucks making deliveries to
the United States;
(iv) Attest procedures to be conducted annually by an independent
third party that review loading records and import documents based on
volume reconciliation, or other criteria, to confirm that all Certified
DFR-Diesel remains segregated throughout the distribution system and is
only loaded into trucks for import into the United States.
(3) The petition required by this section must be submitted to EPA
along with the application for temporary refiner relief individual
refinery diesel sulfur standard under this subpart.
(q) Withdrawal or suspension of a foreign refinery's temporary
refinery flexibility program approval. EPA may withdraw or suspend a
diesel refiner baseline or standard approval for a foreign refinery
where--
(1) A foreign refiner fails to meet any requirement of this section;
(2) A foreign government fails to allow EPA inspections as provided
in paragraph (i)(1) of this section;
(3) A foreign refiner asserts a claim of, or a right to claim,
sovereign immunity in an action to enforce the requirements in this
subpart; or
(4) A foreign refiner fails to pay a civil or criminal penalty that
is not satisfied using the foreign refiner bond specified in paragraph
(k) of this section.
(r) Early use of a foreign refiner motor vehicle diesel fuel
baseline. (1) A foreign refiner may begin using an individual refinery
baseline under subpart I of this part before EPA has approved the
baseline, provided that:
(i) A baseline petition has been submitted as required in paragraph
(b) of this section;

[[Page 39212]]

(ii) EPA has made a provisional finding that the baseline petition
is complete;
(iii) The foreign refiner has made the commitments required in
paragraph (i) of this section;
(iv) The persons who will meet the independent third party and
independent attest requirements for the foreign refinery have made the
commitments required in paragraphs (f)(3)(iii) and (h)(7)(iii) of this
section; and
(v) The foreign refiner has met the bond requirements of paragraph
(k) of this section.
(2) In any case where a foreign refiner uses an individual refinery
baseline before final approval under paragraph (r)(1) of this section,
and the foreign refinery baseline values that ultimately are approved
by EPA are more stringent than the early baseline values used by the
foreign refiner, the foreign refiner shall recalculate its compliance,
ab initio, using the baseline values approved by the EPA, and the
foreign refiner shall be liable for any resulting violation of the
motor vehicle highway diesel fuel requirements.
(s) Additional requirements for petitions, reports and
certificates. Any petition for approval to produce diesel fuel subject
to the diesel foreign refiner program, any alternative procedures under
paragraph (p) of this section, any report or other submission required
by paragraph (c), (f)(2), or (i) of this section, and any certification
under paragraph (d)(3) of this section shall be--
(1) Submitted in accordance with procedures specified by the
Administrator, including use of any forms that may be specified by the
Administrator.
(2) Be signed by the president or owner of the foreign refiner
company, or by that person's immediate designee, and shall contain the
following declaration:

I hereby certify: (1) That I have actual authority to sign on
behalf of and to bind [insert name of foreign refiner]
with regard
to all statements contained herein; (2) that I am aware that the
information contained herein is being certified, or submitted to the
United States Environmental Protection Agency, under the
requirements of 40 CFR part 80, subpart I, and that the information
is material for determining compliance under these regulations; and
(3) that I have read and understand the information being certified
or submitted, and this information is true, complete and correct to
the best of my knowledge and belief after I have taken reasonable
and appropriate steps to verify the accuracy thereof.
I affirm that I have read and understand the provisions of 40
CFR part 80, subpart I, including 40 CFR 80.620 apply to [insert
name of foreign refiner]. Pursuant to Clean Air Act section 113(c)
and 18 U.S.C. 1001, the penalty for furnishing false, incomplete or
misleading information in this certification or submission is a fine
of up to $10,000 U.S., and/or imprisonment for up to five years.

PART 86--CONTROL OF EMISSIONS FROM NEW AND IN-USE HIGHWAY VEHICLES
AND ENGINES

? 74. The authority citation for part 86 continues to read as follows:

Authority: 42 U.S.C. 7401--7671(q).

? 75. Section 86.007-35 is amended by revising paragraph (c) to read as
follows:

Sec. 86.007-35 Labeling.

* * * * *
(c) Model year 2007 and later diesel-fueled vehicles must include
permanent readily visible labels on the dashboard (or instrument panel)
and near all fuel inlets that state ``Use Ultra Low Sulfur Diesel Fuel
Only'' or ``Ultra Low Sulfur Diesel Fuel Only''.
* * * * *

? 76. Section 86.007-38 is amended by revising paragraph (i) to read as
follows:

Sec. 86.007-38 Maintenance instructions.

* * * * *
(i) For each new diesel-fueled engine subject to the standards
prescribed in Sec. 86.007-11, as applicable, the manufacturer shall
furnish or cause to be furnished to the ultimate purchaser a statement
that ``This engine must be operated only with ultra low-sulfur diesel
fuel (meeting EPA specifications for highway diesel fuel, including a
15 ppm sulfur cap).''

PART 89--CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD
COMPRESSION-IGNITION ENGINES

? 77. The authority citation for part 89 continues to read as follows:

Authority: 42 U.S.C. 7521, 7522, 7523, 7524, 7525, 7541, 7542,
7543, 7545, 7547, 7549, 7550, and 7601(a).

? 78. Section 89.1 is amended by adding paragraph (b)(6) to read as follows:

Sec. 89.1 Applicability.

* * * * *
(b) * * *
(6) Tier 4 engines. This part does not apply to engines that are
subject to emission standards under 40 CFR part 1039. See 40 CFR 1039.1
to determine when that part 1039 applies. Note that certain
requirements and prohibitions apply to engines built on or after
January 1, 2006 if they are installed in stationary applications or in
equipment that will be used solely for competition, as described in 40
CFR 1039.1 and 40 CFR 1068.1; those provisions apply instead of the
provisions of this part 89.

? 79. Section 89.2 is amended by adding a definition for ``Sulfur-
sensitive technology'' in alphabetical order to read as follows:

Sec. 89.2 Definitions.

* * * * *
Sulfur-sensitive technology means an emission-control technology
that experiences a significant drop in emission-control performance or
emission-system durability when an engine is operated on low-sulfur
fuel (i.e., fuel with a sulfur concentration up to 500 ppm) as compared
to when it is operated on ultra low-sulfur fuel (i.e., fuel with a
sulfur concentration less than 15 ppm). Exhaust-gas recirculation is
not a sulfur-sensitive technology.
* * * * *

? 80. Section 89.112 is amended by revising the introductory text of
paragraph (f)(1) and adding paragraph (g) to read as follows:

Sec. 89.112 Oxides of nitrogen, carbon monoxide, hydrocarbon, and
particulate matter exhaust emission standards.

* * * * *
(f) * * *
(1) Voluntary standards. Engines may be designated ``Blue Sky
Series'' engines by meeting the voluntary standards listed in Table 3,
which apply to all certification and in-use testing, as follows:
* * * * *
(g) Manufacturers of engines at or above 37 kW and below 56 kW from
model years 2008 through 2012 that are subject to the standards of this
section under 40 CFR 1039.102 must take the following additional steps:
(1) State the applicable PM standard on the emission control
information label.
(2) Add information to the emission-related installation
instructions to clarify the equipment manufacturer's obligations under
40 CFR 1039.104(f).

? 81. Section 89.114 is amended by adding a new paragraph (b)(3) to read
as follows:

Sec. 89.114 Special and alternate test procedures.

* * * * *
(b) * * *
(3) A manufacturer may elect to use the test procedures in 40 CFR
part 1065 as an alternate test procedure without advance approval by
the Administrator. The manufacturer must identify in its application
for certification that the engines were tested using the procedures in
40 CFR part 1065.

[[Page 39213]]

? 82. Section 89.203 is amended by adding a new paragraph (c)(6) to read
as follows:

Sec. 89.203 General provisions.

* * * * *
(c) * * *
(6) Model year 2008 and 2009 engines rated under 8 kW that are
allowed to certify under this part because they meet the criteria in 40
CFR 1039.101(c) may not generate emission credits.

? 83. Section 89.330 is amended by revising paragraph (b)(3) and adding
paragraph (e) to read as follows:

Sec. 89.330 Lubricating oil and test fuels.

* * * * *
(b) * * *
(3) Testing of Tier 1 and Tier 2 engines rated under 37 kW and Tier
2 and Tier 3 engines rated at or above 37 kW that is conducted by the
Administrator shall be performed using test fuels that meet the
specifications in Table 4 in Appendix A of this subpart and that have a
sulfur content no higher than 0.20 weight percent.
* * * * *
(e) Low-sulfur test fuel. (1) Upon request, for engines rated at or
above 75 kW in model years 2006 or 2007, the diesel test fuel may be
the low-sulfur diesel test fuel specified in 40 CFR part 1065, subject
to the provisions of this paragraph (e)(1).
(i) To use this option, the manufacturer must--
(A) Ensure that ultimate purchasers of equipment using these
engines are informed that the use of fuel meeting the 500 ppm
specification is recommended.
(B) Recommend to equipment manufacturers that a label be applied at
the fuel inlet recommending 500 ppm fuel.
(ii) None of the engines in the engine family may employ sulfur-
sensitive technologies.
(iii) For engines rated at or above 130 kW, this option may be used
in 2006 and 2007. For engines rated at or above 75 kW and under 130 kW,
this option may be used only in 2007.
(2) For model years 2008 through 2010, except as otherwise
provided, the diesel test fuel shall be the low-sulfur diesel test fuel
specified in 40 CFR part 1065.
(3) The diesel test fuel shall be the ultra low-sulfur diesel test
fuel specified in 40 CFR part 1065 for model years 2011 and later.
(4) For model years 2007 through 2010 engines that use sulfur-
sensitive emission-control technology, the diesel test fuel is the
ultra low-sulfur fuel specified in 40 CFR part 1065 if the manufacturer
demonstrates that the in-use engines will use only fuel with 15 ppm or
less of sulfur.
(5) Instead of the test fuels described in paragraphs (e)(2)
through (4) of this section, for model years 2008 and later,
manufacturers may use the test fuel described in appendix A of this
subpart. In such cases, the test fuel described in appendix A of this
subpart shall be the test fuel for all manufacturer and EPA testing.

? 84. Section 89.908 is amended by adding paragraph (c) to read as follows:

Sec. 89.908 National security exemption.

* * * * *
(c) Manufacturers must add a legible label, written in block
letters in English, to each engine exempted under this section. The
label must be permanently secured to a readily visible part of the
engine needed for normal operation and not normally requiring
replacement, such as the engine block. This label must include at least
the following items:
(1) The label heading ``EMISSION CONTROL INFORMATION''.
(2) Your corporate name and trademark.
(3) Engine displacement, engine family identification (as
applicable), and model year of the engine or whom to contact for
further information.
(4) The statement ``THIS ENGINE HAS AN EXEMPTION FOR NATIONAL
SECURITY UNDER 40 CFR 89.908.''.

? 85. Section 89.910 is amended by adding paragraph (c) to read as follows:

Sec. 89.910 Granting of exemptions.

* * * * *
(c) Manufacturers may ask EPA to apply the provisions of 40 CFR
1068.201(i) to engines exempted or excluded under this subpart.

PART 94--CONTROL OF AIR POLLUTION FROM MARINE COMPRESSION-IGNITION ENGINES

? 86. The authority citation for part 94 continues to read as follows:

Authority: 42 U.S.C. 7522, 7523, 7524, 7525, 7541, 7542, 7543,
7545, 7547, 7549, 7550, and 7601(a).

? 87. Section 94.908 is amended by adding paragraph (c) to read as follows:

Sec. 94.908 National security exemption.

? 88. A new part 1039 is added to subchapter U of chapter I, to read as
follows:

SUBCHAPTER U--AIR POLLUTION CONTROLS

PART 1039--CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD
COMPRESSION-IGNITION ENGINES

Subpart A--Overview and Applicability
Sec.
1039.1 Does this part apply for my engines?
1039.5 Which engines are excluded from this part's requirements?
1039.10 How is this part organized?
1039.15 Do any other regulation parts apply to me?
1039.20 What requirements from this part apply to excluded
stationary engines?
Subpart B--Emission Standards and Related Requirements
1039.101 What exhaust emission standards must my engines meet after
the 2014 model year?
1039.102 What exhaust emission standards and phase-in allowances
apply for my engines in model year 2014 and earlier?
1039.104 Are there interim provisions that apply only for a limited time?
1039.105 What smoke standards must my engines meet?
1039.107 What evaporative emission standards and requirements apply?
1039.110 [Reserved]
1039.115 What other requirements must my engines meet?
1039.120 What emission-related warranty requirements apply to me?
1039.125 What maintenance instructions must I give to buyers?
1039.130 What installation instructions must I give to equipment
manufacturers?
1039.135 How must I label and identify the engines I produce?
1039.140 What is my engine's maximum engine power?
Subpart C--Certifying Engine Families
1039.201 What are the general requirements for obtaining a
certificate of conformity?
1039.205 What must I include in my application?
1039.210 May I get preliminary approval before I complete my application?
1039.220 How do I amend the maintenance instructions in my application?

[[Page 39214]]

1039.225 How do I amend my application for certification to include
new or modified engines?
1039.230 How do I select engine families?
1039.235 What emission testing must I perform for my application for
a certificate of conformity?
1039.240 How do I demonstrate that my engine family complies with
exhaust emission standards?
1039.245 How do I determine deterioration factors from exhaust
durability testing?
1039.250 What records must I keep and what reports must I send to EPA?
1039.255 What decisions may EPA make regarding my certificate of
conformity?
1039.260 What provisions apply to engines that are conditionally
exempted from certification?
Subpart D--[Reserved]
Subpart E--In-use Testing
1039.401 General provisions.
Subpart F--Test Procedures
1039.501 How do I run a valid emission test?
1039.505 How do I test engines using steady-state duty cycles,
including ramped-modal testing?
1039.510 Which duty cycles do I use for transient testing?
1039.515 What are the test procedures related to not-to-exceed
standards?
1039.520 What testing must I perform to establish deterioration factors?
1039.525 How do I adjust emission levels to account for infrequently
regenerating aftertreatment devices?
Subpart G--Special Compliance Provisions
1039.601 What compliance provisions apply to these engines?
1039.605 What provisions apply to engines already certified under
the motor-vehicle program?
1039.610 What provisions apply to vehicles already certified under
the motor-vehicle program?
1039.615 What special provisions apply to engines using noncommercial fuels?
1039.620 What are the provisions for exempting engines used solely
for competition?
1039.625 What requirements apply under the program for equipment-
manufacturer flexibility?
1039.626 What special provisions apply to equipment imported under
the equipment-manufacturer flexibility program?
1039.627 What are the incentives for equipment manufacturers to use
cleaner engines?
1039.630 What are the economic hardship provisions for equipment
manufacturers?
1039.635 What are the hardship provisions for engine manufacturers?
1039.640 What special provisions apply to branded engines?
1039.645 What special provisions apply to engines used for
transportation refrigeration units?
1039.650 [Reserved]
1039.655 What special provisions apply to engines sold in Guam,
American Samoa, or the Commonwealth of the Northern Mariana Islands?
1039.660 What special provisions apply to Independent Commercial Importers?
Subpart H--Averaging, Banking, and Trading for Certification
1039.701 General provisions.
1039.705 How do I generate and calculate emission credits?
1039.710 How do I average emission credits?
1039.715 How do I bank emission credits?
1039.720 How do I trade emission credits?
1039.725 What must I include in my application for certification?
1039.730 What ABT reports must I send to EPA?
1039.735 What records must I keep?
1039.740 What restrictions apply for using emission credits?
1039.745 What can happen if I do not comply with the provisions of
this subpart?
Subpart I--Definitions and Other Reference Information
1039.801 What definitions apply to this part?
1039.805 What symbols, acronyms, and abbreviations does this part
use?
1039.810 What materials does this part reference?
1039.815 What provisions apply to confidential information?
1039.820 How do I request a hearing?
Appendix I to Part 1039--[Reserved]
Appendix II to Part 1039--Steady-state Duty Cycles for Constant-
Speed Engines
Appendix III to Part 1039--Steady-state Duty Cycles for Variable-
Speed Engines with Maximum Power below 19 kW
Appendix IV to Part 1039--Steady-state Duty Cycles for Variable-
Speed Engines with Maximum Power at or above 19 kW
Appendix V to Part 1039--[Reserved]
Appendix VI to Part 1039--Nonroad Compression-ignition Composite
Transient Cycle

Authority: 42 U.S.C. 7401-7671(q).

Subpart A--Overview and Applicability

Sec. 1039.1 Does this part apply for my engines?

(a) The regulations in this part 1039 apply for all new,
compression-ignition nonroad engines (defined in Sec. 1039.801),
except as provided in Sec. 1039.5.
(b) This part 1039 applies as follows:
(1) This part 1039 applies for all engines subject to the emission
standards specified in subpart B of this part starting with the model
years noted in the following table:

Table 1 of Sec. 1039.1.--Part 1039 Applicability by Model Year
------------------------------------------------------------------------
Power category Model year
------------------------------------------------------------------------
kW < 19.................................................... \1\ 2008
19 < = kW < 56............................................. \2\ 2008
56 < = kW < 130............................................. 2012
130 < = kW < = 560........................................... 2011
kW > 560................................................... 2011
------------------------------------------------------------------------
\1\ As described in Sec. 1039.102, some engines below 19 kW may not be
subject to the emission standards in this part until the 2010 model
year.
\2\ As described in Sec. 1039.102, some engines in the 19-56 kW power
category may not be subject to the emission standards in this part
until the 2012 model year.

(2) If you use the provisions of Sec. 1039.104(a) to certify an
engine to the emission standards of this part before the model years
shown in Table 1 of this section, all the requirements of this part
apply for those engines.
(3) See 40 CFR part 89 for requirements that apply to engines not
yet subject to the requirements of this part 1039.
(4) This part 1039 applies for other compression-ignition engines
as follows:
(i) The provisions of paragraph (c) of this section and Sec.
1039.801 apply for stationary engines beginning January 1, 2006.
(ii) The provisions of Sec. 1039.620 and Sec. 1039.801 apply for
engines used solely for competition beginning January 1, 2006.
(c) The definition of nonroad engine in 40 CFR 1068.30 excludes
certain engines used in stationary applications. These engines are not
required to comply with this part, except for the requirements in Sec.
1039.20. In addition, the prohibitions in 40 CFR 1068.101 restrict the
use of stationary engines for nonstationary purposes.
(d) In certain cases, the regulations in this part 1039 apply to
engines at or above 250 kW that would otherwise be covered by 40 CFR
part 1048. See 40 CFR 1048.620 for provisions related to this allowance.

Sec. 1039.5 Which engines are excluded from this part's requirements?

This part does not apply to the following nonroad engines:
(a) Locomotive engines. (1) The following locomotive engines are
not subject to the provisions of this part 1039:
(i) Engines in locomotives subject to the standards of 40 CFR part 92.
(ii) Engines in locomotives that are exempt from the standards of
40 CFR part 92 pursuant to the provisions of 40 CFR part 92 (except for
the provisions of 40 CFR 92.907). For example, an engine that is exempt
under 40 CFR

[[Page 39215]]

92.906 because it is in a manufacturer-owned locomotive is not subject
to the provisions of this part 1039.
(2) The following locomotive engines are subject to the provisions
of this part 1039:
(i) Engines in locomotives exempt from 40 CFR part 92 pursuant to
the provisions of 40 CFR 92.907.
(ii) Locomotive engines excluded from the definition of locomotive
in 40 CFR 92.2.
(b) Marine engines. (1) The following marine engines are not
subject to the provisions of this part 1039:
(i) Engines subject to the standards of 40 CFR part 94.
(ii) Engines not subject to the standards of 40 CFR part 94 only
because they were produced before the standards of 40 CFR part 94
started to apply.
(iii) Engines that are exempt from the standards of 40 CFR part 94
pursuant to the provisions of 40 CFR part 94 (except for the provisions
of 40 CFR 94.907). For example, an engine that is exempt under 40 CFR
94.906 because it is a manufacturer-owned engine is not subject to the
provisions of this part 1039.
(iv) Engines with rated power below 37 kW.
(v) Engines on foreign vessels.
(2) Marine engines are subject to the provisions of this part 1039
if they are exempt from 40 CFR part 94 based on the engine-dressing
provisions of 40 CFR 94.907.
(c) Mining engines. Engines used in underground mining or in
underground mining equipment and regulated by the Mining Safety and
Health Administration in 30 CFR parts 7, 31, 32, 36, 56, 57, 70, and 75
are not subject to the provisions of this part 1039.
(d) Hobby engines. Engines with per-cylinder displacement below 50
cubic centimeters are not subject to the provisions of this part 1039.

Sec. 1039.10 How is this part organized?

The regulations in this part 1039 contain provisions that affect
both engine manufacturers and others. However, the requirements of this
part are generally addressed to the engine manufacturer. Unless we
specifically state otherwise, the term ``you'' means the engine
manufacturer, as defined in Sec. 1039.801. This part 1039 is divided
into the following subparts:
(a) Subpart A of this part defines the applicability of part 1039
and gives an overview of regulatory requirements.
(b) Subpart B of this part describes the emission standards and
other requirements that must be met to certify engines under this part.
Note that Sec. 1039.102 and Sec. 1039.104 discuss certain interim
requirements and compliance provisions that apply only for a limited time.
(c) Subpart C of this part describes how to apply for a certificate
of conformity.
(d) [Reserved]
(e) Subpart E of this part describes general provisions for testing
in-use engines.
(f) Subpart F of this part describes how to test your engines
(including references to other parts of the Code of Federal
Regulations).
(g) Subpart G of this part and 40 CFR part 1068 describe
requirements, prohibitions, and other provisions that apply to engine
manufacturers, equipment manufacturers, owners, operators, rebuilders,
and all others.
(h) Subpart H of this part describes how you may generate and use
emission credits to certify your engines.
(i) Subpart I of this part contains definitions and other reference
information.

Sec. 1039.15 Do any other regulation parts apply to me?

(a) Part 1065 of this chapter describes procedures and equipment
specifications for testing engines. Subpart F of this part 1039
describes how to apply the provisions of part 1065 of this chapter to
determine whether engines meet the emission standards in this part.
(b) The requirements and prohibitions of part 1068 of this chapter
apply to everyone, including anyone who manufactures, imports,
installs, owns, operates, or rebuilds any of the engines subject to
this part 1039, or equipment containing these engines. Part 1068 of
this chapter describes general provisions, including these seven areas:
(1) Prohibited acts and penalties for engine manufacturers,
equipment manufacturers, and others.
(2) Rebuilding and other aftermarket changes.
(3) Exclusions and exemptions for certain engines.
(4) Importing engines.
(5) Selective enforcement audits of your production.
(6) Defect reporting and recall.
(7) Procedures for hearings.
(c) Other parts of this chapter apply if referenced in this part.

Sec. 1039.20 What requirements from this part apply to excluded
stationary engines?

The provisions of this section apply for engines built on or after
January 1, 2006.
(a) You must add a permanent label or tag to each new engine you
produce or import that is excluded under Sec. 1039.1(c) as a
stationary engine. To meet labeling requirements, you must do the
following things:
(1) Attach the label or tag in one piece so no one can remove it
without destroying or defacing it.
(2) Secure it to a part of the engine needed for normal operation
and not normally requiring replacement.
(3) Make sure it is durable and readable for the engine's entire life.
(4) Write it in English.
(5) Follow the requirements in Sec. 1039.135(g) regarding
duplicate labels if the engine label is obscured in the final installation.
(b) Engine labels or tags required under this section must have the
following information:
(1) Include the heading ``EMISSION CONTROL INFORMATION''.
(2) Include your full corporate name and trademark. You may instead
include the full corporate name and trademark of another company you
choose to designate.
(3) State the engine displacement (in liters) and maximum engine power.
(4) State: ``THIS ENGINE IS EXCLUDED FROM THE REQUIREMENTS OF 40
CFR PART 1039 AS A ``STATIONARY ENGINE.'' INSTALLING OR USING THIS
ENGINE IN ANY OTHER APPLICATION MAY BE A VIOLATION OF FEDERAL LAW
SUBJECT TO CIVIL PENALTY.''.

Subpart B--Emission Standards and Related Requirements

Sec. 1039.101 What exhaust emission standards must my engines meet
after the 2014 model year?

The exhaust emission standards of this section apply after the 2014
model year. Certain of these standards also apply for model year 2014
and earlier. This section presents the full set of emission standards
that apply after all the transition and phase-in provisions of Sec.
1039.102 and Sec. 1039.104 expire. See Sec. 1039.102 and 40 CFR
89.112 for exhaust emission standards that apply to 2014 and earlier
model years. Section 1039.105 specifies smoke standards.
(a) Emission standards for transient testing. Transient exhaust
emissions from your engines may not exceed the applicable emission
standards in Table 1 of this section. Measure emissions using the
applicable transient test procedures described in subpart F of this
part. The following engines are not subject to the transient standards
in this paragraph (a):
(1) Engines above 560 kW.
(2) Constant-speed engines.
(b) Emission standards for steady-state testing. Steady-state exhaust

[[Page 39216]]

emissions from your engines may not exceed the applicable emission
standards in Table 1 of this section. Measure emissions using the
applicable steady-state test procedures described in subpart F of this
part.

Table 1 of Sec. 1039.101.--Tier 4 Exhaust Emission Standards After the 2014 Model Year, g/kW-hr \1\
----------------------------------------------------------------------------------------------------------------
Maximum engine power Application PM NOX NMHC NOX+NMHC CO
----------------------------------------------------------------------------------------------------------------
kW < 19...................... All............ \2\ 0.40 ............ ........... 7.5 \3\ 6.6
19 < = kW < 56................ All............ 0.03 ............ ........... 4.7 \4\ 5.0
56 < = kW < 130............... All............ 0.02 0.40 0.19 ........... 5.0
130 < = kW < = 560............. All............ 0.02 0.40 0.19 ........... 3.5
Generator sets. 0.03 0.67 0.19 ........... 3.5
kW > 560..................... All except 0.04 3.5 0.19 ........... 3.5
generator sets.
----------------------------------------------------------------------------------------------------------------
\1\ Note that some of these standards also apply for 2014 and earlier model years. This table presents the full
set of emission standards that apply after all the transition and phase-in provisions of Sec. 1039.102
expire.
\2\ See paragraph (c) of this section for provisions related to an optional PM standard for certain engines
below 8 kW.
\3\ The CO standard is 8.0 g/kW-hr for engines below 8 kW.
\4\ The CO standard is 5.5 g/kW-hr for engines below 37 kW.

(c) Optional PM standard for engines below 8 kW. You may certify
hand-startable, air-cooled, direct injection engines below 8 kW to an
optional Tier 4 PM standard of 0.60 g/kW-hr. The term hand-startable
generally refers to engines that are started using a hand crank or pull
cord. This PM standard applies to both steady-state and transient
testing, as described in paragraphs (a) and (b) of this section.
Engines certified under this paragraph (c) may not be used to generate
PM or NO_X+NMHC emission credits under the provisions of
subpart H of this part. These engines may use PM or NO_X+NMHC
emission credits, subject to the FEL caps in paragraph (d)(1) of this
section.
(d) Averaging, banking, and trading. You may generate or use
emission credits under the averaging, banking, and trading (ABT)
program, as described in subpart H of this part. This requires that you
specify a family emission limit (FEL) for each pollutant you include in
the ABT program for each engine family. These FELs serve as the
emission standards for the engine family with respect to all required
testing instead of the standards specified in paragraphs (a) and (b) of
this section. The FELs determine the not-to-exceed standards for your
engine family, as specified in paragraph (e) of this section.
(1) Primary FEL caps. The FEL may not be higher than the limits in
Table 2 of this section, except as allowed by paragraph (d)(2) of this
section or by Sec. 1039.102:

Table 2 of Sec. 1039.101.--Tier 4 FEL Caps After the 2014 Model Year, g/kW-hr
----------------------------------------------------------------------------------------------------------------
Maximum engine power Application PM NOX NOX+NMHC
----------------------------------------------------------------------------------------------------------------
kW < 19................................... All.......................... 0.80 ........... \1\ 9.5
19 < = kW < 56............................. All.......................... 0.05 ........... 7.5
56 < = kW < 130............................ All.......................... 0.04 0.80 ...........
130 < = kW < = 560.......................... All.......................... 0.04 0.80 ...........
kW > 560.................................. Generator sets............... 0.05 1.07 ...........
All except generator sets.... 0.07 6.2 ...........
----------------------------------------------------------------------------------------------------------------
\1\ For engines below 8 kW, the FEL cap is 10.5 g/kW-hr for NOX+NMHC emissions.

(2) Alternate FEL caps. For a given power category, you may use the
alternate FEL caps shown in Table 3 of this section instead of the FEL
caps identified in paragraph (d)(1) of this section for up to 5 percent
of your U.S.-directed production volume in a given model year.

------------------------------------------------------------------------
Starting
Maximum engine power model year PM FEL cap NOX FEL cap
\1\
------------------------------------------------------------------------
19 < = kW < 56.................... \2\ 2016 0.30 ...........
56 < = kW < 130................... 2016 \3\ 0.30 \3\ 3.8
130 < = kW < = 560................. 2015 0.20 3.8
kW > 560......................... 2019 0.10 \4\ 3.5
------------------------------------------------------------------------
\1\ See Sec. 1039.104(g) for alternate FEL caps that apply in earlier
model years.
\2\ For manufacturers certifying engines under Option #1 of
Table 3 of Sec. 1039.102, these alternate FEL caps apply starting
with the 2017 model year.
\3\ For engines below 75 kW, the FEL caps are 0.40 g/kW-hr for PM
emissions and 4.4 g/kW-hr for NOX emissions.
\4\ For engines above 560 kW, the provision for alternate NOX FEL caps
is limited to generator-set engines. For example, if you produce 1,000
generator-set engines above 560 kW in a given model year, up to 50 of
them may be certified to the alternate NOX FEL caps.

(e) Not-to-exceed standards. Exhaust emissions from your engines
may not exceed the applicable not-to-exceed (NTE) standards in this
paragraph (e).
(1) Measure emissions using the procedures described in subpart F
of this part.
(2) Except as noted in paragraph (e)(7) of this section, the NTE
standard, rounded to the same number of decimal places as the
applicable standard in Table 1 of this section, is determined from the
following equation:

[[Page 39217]]

NTE standard for each pollutant = (STD) x (M)

Where:

STD = The standard specified for that pollutant in Table 1 of this
section (or paragraph (c) of this section) if you certify without
using ABT for that pollutant; or the FEL for that pollutant if you
certify using ABT.
M = The NTE multiplier for that pollutant, as defined in paragraph
(e)(3) of this section.

(3) The NTE multiplier for each pollutant is 1.25, except in the
following cases:

------------------------------------------------------------------------
If . . . Or . . . Then . . .
------------------------------------------------------------------------
(i) The engine family is The engine family The multiplier for
certified to a NOX standard is certified to a NOX, NMHC, and
less than 2.50 g/kW-hr without NOX FEL less than NOX+NMHC is 1.50.
using ABT. 2.50 g/kW-hr or a
NOX+NMHC FEL less
than 2.70 g/kW-hr.
(ii) The engine family is The engine family The multiplier for
certified to a PM standard is certified to a PM is 1.50.
less than 0.07 g/kW-hr without PM FEL less than
using ABT. 0.07 g/kW-hr.
------------------------------------------------------------------------

(4) There are two sets of specifications of ambient operating
regions that will apply for all NTE testing of engines in an engine
family. You must choose one set for each engine family and must
identify your choice of ambient operating regions in each application
for certification for an engine family. You may choose separately for
each engine family. Choose one of the following ambient operating regions:
(i) All altitudes less than or equal to 5,500 feet above sea level
during all ambient temperature and humidity conditions.
(ii) All altitudes less than or equal to 5,500 feet above sea
level, for temperatures less than or equal to the temperature
determined by the following equation at the specified altitude:

T = -0.00254 x A + 100

Where:

T = ambient air temperature in degrees Fahrenheit.
A = altitude in feet above sea level (A is negative for altitudes
below sea level).

(5) Temperature and humidity ranges for which correction factors
are allowed are specified in 40 CFR 86.1370-2007(e).
(i) If you choose the ambient operating region specified in
paragraph (e)(4)(i) of this section, the temperature and humidity
ranges for which correction factors are allowed are defined in 40 CFR
86.1370-2007(e)(1).
(ii) If you choose the ambient operating region specified in
paragraph (e)(4)(ii) of this section, the temperature and humidity
ranges for which correction factors are allowed are defined in 40 CFR
86.1370-2007(e)(2).
(6) For engines equipped with exhaust-gas recirculation, the NTE
standards of this section do not apply during the cold operating
conditions specified in 40 CFR 86.1370-2007(f).
(7) For engines certified to a PM FEL less than or equal to 0.01 g/
kW-hr, the PM NTE standard is 0.02 g/kW-hr.
(f) Fuel types. The exhaust emission standards in this section
apply for engines using the fuel type on which the engines in the
engine family are designed to operate, except for engines certified
under Sec. 1039.615. For engines certified under Sec. 1039.615, the
standards of this section apply to emissions measured using the
specified test fuel. You must meet the numerical emission standards for
NMHC in this section based on the following types of hydrocarbon
emissions for engines powered by the following fuels:
(1) Alcohol-fueled engines: THCE emissions.
(2) Other engines: NMHC emissions.
(g) Useful life. Your engines must meet the exhaust emission
standards in paragraphs (a) through (e) of this section over their full
useful life.
(1) The useful life values are shown in the following table, except
as allowed by paragraph (g)(2) of this section:

Table 4 of Sec. 1039.101--Useful Life Values
----------------------------------------------------------------------------------------------------------------
And its maximum power And its rated speed is Then its useful life is
If your engine is certified as . . . is . . . . . . . . .
----------------------------------------------------------------------------------------------------------------
(i) Variable speed or constant speed. kW < 19................. Any Speed.............. 3,000 hours or five
years, whichever comes
first.
(ii) Constant speed.................. 19 < = kW < 37........... 3,000 rpm or higher.... 3,000 hours or five
years, whichever comes
first.
(iii) Constant speed................. 19 < = kW < 37........... Less than 3,000 rpm.... 5,000 hours or seven
years, whichever comes
first.
(iv) Variable........................ 19 < = kW < 37........... Any Speed.............. 5,000 hours or seven
years, whichever comes
first.
(v) Variable speed or constant speed. kW >=37................ Any speed.............. 8,000 hours or ten
years, whichever comes
first.
----------------------------------------------------------------------------------------------------------------

(2) You may request in your application for certification that we
approve a shorter useful life for an engine family. We may approve a
shorter useful life if we determine that these engines will rarely
operate longer than the alternate useful life. Your demonstration must
include documentation from in-use engines. Your demonstration must also
include any overhaul interval that you recommend and any mechanical
warranty that you offer for the engine.
(h) Applicability for testing. The emission standards in this
subpart apply to all testing, including certification, selective
enforcement audits, and in-use testing. For selective enforcement
audits, we will require you to perform duty-cycle testing as specified
in Sec. Sec. 1039.505 and 1039.510. The NTE standards of this section
apply for those tests. We will not direct you to do additional testing
under a selective enforcement audit to show that your engines meet the
NTE standards.

[[Page 39218]]

Sec. 1039.102 What exhaust emission standards and phase-in allowances
apply for my engines in model year 2014 and earlier?

The exhaust emission standards of this section apply for 2014 and
earlier model years. See Sec. 1039.101 for exhaust emission standards
that apply to later model years. See 40 CFR 89.112 for exhaust emission
standards that apply to model years before the standards of this part
1039 take effect.
(a) Emission standards for transient testing. Transient exhaust
emissions from your engines may not exceed the applicable emission
standards in Tables 1 through 6 of this section. Measure emissions
using the applicable transient test procedures described in subpart F
of this part. See paragraph (c) of this section for a description of
provisions related to the phase-in and phase-out standards shown in
Tables 4 through 6 of this section. The emission standards for
transient testing are limited for certain engines, as follows:
(1) The transient standards in this section do not apply for the
following engines:
(i) Engines below 37 kW for model years before 2013.
(ii) Engines certified under Option #1 of Table 3 of this
section. These are the small-volume manufacturer engines certified to
the Option #1 standards for model years 2008 through 2015 under
Sec. 1039.104(c), and other engines certified to the Option #1
standards for model years 2008 through 2012.
(iii) Engines certified to an alternate FEL during the first four
years of the Tier 4 standards for the applicable power category, as
allowed in Sec. 1039.104(g). However, you may certify these engines to
the transient standards in this section to avoid using temporary
compliance adjustment factors, as described in Sec. 1039.104(g)(2).
Note that in some cases this four-year period extends into the time
covered by the standards in Sec. 1039.101.
(iv) Constant-speed engines.
(v) Engines above 560 kW.
(2) The transient standards in this section for gaseous pollutants
do not apply to phase-out engines that you certify to the same
numerical standards (and FELs if the engines are certified using ABT)
for gaseous pollutants as you certified under the Tier 3 requirements
of 40 CFR part 89. However, except as specified by paragraph (a)(1) of
this section, the transient PM emission standards apply to these engines.
(b) Emission standards for steady-state testing. Steady-state
exhaust emissions from your engines may not exceed the applicable
emission standards in Tables 1 through 7 of this section. Measure
emissions using the applicable steady-state test procedures described
in subpart F of this part. See paragraph (c) of this section for a
description of provisions related to the phase-in and phase-out
standards shown in Tables 4 through 6 of this section.

Table 1 of Sec. 1039.102.--Tier 4 Exhaust Emission Standards (g/kW-hr): kW < 19
----------------------------------------------------------------------------------------------------------------
Maximum engine power Model years PM NOX + NMHC CO
----------------------------------------------------------------------------------------------------------------
kW < 8...................................................... 2008-2014 \1\ 0.40 7.5 8.0
8 < = kW < 19................................................ 2008-2014 0.40 7.5 6.6
----------------------------------------------------------------------------------------------------------------
\1\ For engines that qualify for the special provisions in Sec. 1039.101(c), you may delay certifying to the
standards in this part 1039 until 2010. In 2009 and earlier model years, these engines must instead meet the
applicable Tier 2 standards and other requirements from 40 CFR part 89. Starting in 2010, these engines must
meet a PM standard of 0.60 g/kW-hr, as described in Sec. 1039.101(c). Engines certified to the 0.60 g/kWhr
PM standard may not generate ABT credits.

Table 2 of Sec. 1039.102.--Interim Tier 4 Exhaust Emission Standards
(g/kW-hr): 19 < = kW < 37
------------------------------------------------------------------------
Model years PM NOX + NMHC CO
------------------------------------------------------------------------
2008-2012........................ 0.30 7.5 5.5
2013-2014........................ 0.03 4.7 5.5
------------------------------------------------------------------------

Table 3 of Sec. 1039.102.--Interim Tier 4 Exhaust Emission Standards (g/kW-hr): 37 < = kW < 56
----------------------------------------------------------------------------------------------------------------
Option \1\ Model years PM NOX + NMHC CO
----------------------------------------------------------------------------------------------------------------
#1.................................................. 2008-2012 0.30 4.7 5.0
#2.................................................. 2012 0.03 4.7 5.0
All......................................................... 2013-2014 0.03 4.7 5.0
----------------------------------------------------------------------------------------------------------------
\1\You may certify engines to the Option #1 or Option #2 standards starting in the listed model
year. Under Option #1, all engines at or above 37 kW and below 56 kW produced before the 2013 model
year must meet the applicable Option #1 standards in this table. These engines are considered to be
``Option #1 engines.'' Under Option #2, all these engines produced before the 2012 model year
must meet the applicable standards under 40 CFR part 89. Engines certified to the Option #2 standards
in model year 2012 are considered to be ``Option #2 engines.''

Table 4 of Sec. 1039.102.--Interim Tier 4 Exhaust Emission Standards (g/kW-hr): 56 < = kW < 75
----------------------------------------------------------------------------------------------------------------
Model years \1\ Phase-in option PM NOX NMHC NOX + NMHC CO
----------------------------------------------------------------------------------------------------------------
Phase-in........ 0.02 0.40 0.19 ........... 5.0
2012-2013.................... Phase-out....... 0.02 ........... ........... 4.7 5.0
2014......................... All engines..... 0.02 0.40 0.19 ........... 5.0
----------------------------------------------------------------------------------------------------------------
\1\ See paragraph (d)(2) of this section for provisions that allow for a different phase-in schedule than that
specified in paragraph (c)(1) of this section.

[[Page 39219]]

Table 5 of Sec. 1039.102.--Interim Tier 4 Exhaust Emission Standards (g/kW-hr): 75 < = kW < 130
----------------------------------------------------------------------------------------------------------------
Model years \1\ Phase-in option PM NOX NMHC NOX + NMHC CO
----------------------------------------------------------------------------------------------------------------
Phase-in........ 0.02 0.40 0.19 ........... 5.0
2012-2013.................... Phase-out....... 0.02 ........... ........... 4.0 5.0
2014......................... All engines..... 0.02 0.40 0.19 ........... 5.0
----------------------------------------------------------------------------------------------------------------
\1\ See paragraph (d)(2) of this section for provisions that allow for a different phase-in schedule than that
specified in paragraph (c)(1) of this section.

Table 6 of Sec. 1039.102.--Interim Tier 4 Exhaust Emission Standards (g/kW-hr): 130 < = kW < 560
----------------------------------------------------------------------------------------------------------------
Model years \1\ Phase-in option PM NOX NMHC NOX + NMHC CO
----------------------------------------------------------------------------------------------------------------
Phase-in........ 0.02 0.40 0.19 ........... 3.5
2011-2013.................... Phase-out....... 0.02 ........... ........... 4.0 3.5
2014......................... All engines..... 0.02 0.40 0.19 ........... 3.5
----------------------------------------------------------------------------------------------------------------

Table 7 of Sec. 1039.102.--Interim Tier 4 Exhaust Emission Standards (g/kW-hr): kW > 560
----------------------------------------------------------------------------------------------------------------
Model years Maximum engine power Application PM NOX NMHC CO
----------------------------------------------------------------------------------------------------------------
560 < kW < = 900............. All........................ 0.10 3.5 0.40 3.5
Generator sets............. 0.10 0.67 0.40 3.5
2011-2014......... kW > 900............. All except generator sets.. 0.10 3.5 0.40 3.5
----------------------------------------------------------------------------------------------------------------

(c) Phase-in requirements. The following phase-in provisions apply
for engines in 56-560 kW power categories meeting the interim Tier 4
standards in paragraphs (a) and (b) of this section:
(1) For each model year before 2014 noted in Tables 4 through 6 of
this section, you must certify engine families representing at least 50
percent of your U.S.-directed production volume for each power category
to the applicable phase-in standards, except as allowed by paragraph
(c)(3), (d)(2), or (e) of this section. Any engines not certified to
the phase-in standards must be certified to the corresponding phase-out
standards.
(2) Engines certified to the phase-out standards in Tables 4
through 6 of this section must comply with all other requirements that
apply to Tier 4 engines, except as otherwise specified in this section.
(3) At the time of certification, show how you intend to meet the
phase-in requirements of this paragraph (c) based on projected U.S.-
directed production volumes. If your actual U.S.-directed production
volume fails to meet the phase-in requirements for a given model year,
you must make up the shortfall (in terms of number of engines) by the
end of the model year representing the final year of the phase-in
period. For example, if you plan in good faith to produce 50 percent of
a projected 10,000 engines in the 56-130 kW power category (i.e., 5,000
engines) in 2012 in compliance with the Tier 4 phase-in standards for
NO_X and NMHC in Table 4 of this section, but produce 4,500
such engines of an actual 10,000 engines, you must produce 500 engines
in model year 2013 (i.e., the final year of the phase-in for this power
category) that meet the Tier 4 phase-in standards above and beyond the
production otherwise needed to meet the 50-percent phase-in requirement
for model year 2013. If any shortfall exceeds the applicable limit of
paragraph (c)(3)(i) or (ii) of this section, that number of phase-out
engines will be considered not covered by a certificate of conformity
and in violation of Sec. 1068.101(a)(1). The shortfall allowed by this
paragraph (c)(3) may not exceed a certain number of engines, as follows:
(i) For engine families certified according to the alternate phase-
in schedule described in paragraph (d)(2) of this section, for model
years prior to the final year of the phase-in, 5 percent of your actual
U.S.-directed production volume for that power category in that model year.
(ii) For all other engine families, for model years prior to the
final year of the phase-in, 25 percent of your actual U.S.-directed
production volume for that power category in that model year.
(iii) No shortfall is allowed in the final year of the phase-in.
(4) Engines you introduce into commerce beyond the limits described
in paragraphs (c)(3) of this section will be considered not covered by
a certificate of conformity and in violation of Sec. 1068.101(a)(1).
(5) For the purposes of this part, the term ``phase-in'' means
relating to a standard that is identified in this section as a phase-in
standard and the term ``phase-out'' means relating to a standard that
is identified in this section as a phase-out standard. For example, a
200-kW engine from the 2012 model year that is certified to the 4.0 g/
kW-hr NO_X+NMHC standard in Table 6 of Sec. 1039.102 is a
phase-out engine.
(d) Banked credits and alternate phase-in for 56-130 kW engines.
For engines in the 56-130 kW power category, you may use only one of
the following additional provisions:
(1) For model years 2012 through 2014, you may use banked
NO_X+NMHC credits from any Tier 2 engine at or above 37 kW
certified under 40 CFR part 89 to meet the NO_X phase-in
standards or the NO_X+NMHC phase-out standards under
paragraphs (b) and (c) of this section, subject to the additional ABT
provisions in Sec. 1039.740.
(2) Instead of meeting the phase-in requirements of paragraph
(c)(1) of this section, you may certify engine families representing at
least 25 percent of your U.S.-directed production volume for each model
year from 2012 through 2014 to the applicable phase-in standards in
Tables 4 and 5 of this section, except as allowed by paragraph (c)(3)
or (e) of this section. Any engines not certified to the phase-in
standards must be certified to the corresponding phase-out standards.
Engines certified under this paragraph (d)(2) may generate
NO_X emission credits only for averaging within the same
power category during the same model year.

[[Page 39220]]

For engines certified under this paragraph (d)(2), the 2014 model year
may not extend beyond December 30, 2014.
(e) Alternate NO_X standards. For engines in 56-560 kW
power categories during the phase-in of Tier 4 standards, you may
certify engine families to the alternate NO_X standards in
this paragraph (e) instead of the phase-in and phase-out NO_X
and NO_X+NMHC standards described in Tables 4 through 6 of
this section. Engines certified under this section must be certified to
an NMHC standard of 0.19 g/kW-hr. Do not include engine families
certified under this paragraph (e) in determining whether you comply
with the percentage phase-in requirements of paragraphs (c) and (d)(2)
of this section. Except for the provisions for alternate FEL caps in
Sec. 1039.104(g), the NO_X standards and FEL caps under this
paragraph (e) are as follows:
(1) For engines in the 56-130 kW power category, apply the
following alternate NO_X standards and FEL caps:
(i) If you use the provisions of paragraph (d)(1) of this section,
your alternate NO_X standard for any engine family in the 56-
130 kW power category is 2.3 g/kW-hr for model years 2012 and 2013.
Engines certified to this standard may not exceed a NO_X FEL
cap of 3.0 g/kW-hr.
(ii) If you use the provisions of paragraph (d)(2) of this section,
your alternate NO_X standard for any engine family in the 56-
130 kW power category is 3.4 g/kW-hr for model years 2012 through 2014.
Engines below 75 kW certified to this standard may not exceed a
NO_X FEL cap of 4.4 g/kW-hr; engines at or above 75 kW
certified to this standard may not exceed a NO_X FEL cap of
3.8 g/kW-hr.
(iii) If you do not use the provisions of paragraph (d) of this
section, you may apply the alternate NO_X standard and the
appropriate FEL cap from either paragraph (e)(1)(i) or (ii) of this
section.
(2) For engines in the 130-560 kW power category, the alternate
NO_X standard is 2.0 g/kW-hr for model years 2011 through
2013. Engines certified to this standard may not exceed a
NO_X FEL cap of 2.7 g/kW-hr.
(f) Split families. For generating or using credits for engines in
56-560 kW power categories during the phase-in of Tier 4 standards, you
may split an engine family into two subfamilies (for example, one that
uses credits and one that generates credits for the same pollutant).
(1) Identify any split engine families in your application for
certification. Your engines must comply with all the standards and
requirements applicable to Tier 4 engines, except as noted in this
paragraph (f). You may calculate emission credits relative to different
emission standards (i.e., phase-in and phase-out standards) for
different sets of engines within the engine family, but the engine
family must be certified to a single set of standards and FELs. To
calculate NO_X+NMHC emission credits, add the NO_X
FEL to the NMHC phase-in standard for comparison with the applicable
NO_X+NMHC phase-out standard. Any engine family certified
under this paragraph (f) must meet the applicable phase-in standard for
NMHC. You may assign the number and configurations of engines within
the respective subfamilies any time before the due date for the final
report required in Sec. 1039.730. Apply the same label to each engine
in the family, including the NO_X FEL to which it is certified.
(2) For example, a 10,000-unit engine family in the 75-130 kW power
category may be certified to meet the standards for PM, NMHC, and CO
that apply to phase-in engines, with a 0.8 g/kW-hr FEL for
NO_X. When compared to the phase-out NO_X+NMHC
standard, this engine family would generate positive
NO_X+NMHC emission credits. When compared to the phase-in
NO_X standard, this engine family would generate negative
NO_X emission credits. You could create a subfamily with
2,500 engines (one-quarter of the 10,000 engines) and identify them as
phase-in engines. You would count these 2,500, with their negative
NO_X credits, in determining compliance with the 50-percent
phase-in requirement in paragraph (c)(1) of this section. You would
calculate negative credits relative to the 0.40 g/kW-hr NO_X
standard for these 2,500 engines. You would identify the other 7,500
engines in the family as phase-out engines and calculate positive
credits relative to the 4.0 g/kW-hr NO_X+NMHC standard.
(g) Other provisions. The provisions of Sec. 1039.101(d) through
(h) apply with respect to the standards of this section, with the
following exceptions and special provisions:
(1) NTE standards. Use the provisions of Sec. 1039.101(e)(3) to
calculate and apply the NTE standards, but base these calculated values
on the applicable standards in this section or the applicable FEL,
instead of the standards in Table 1 of Sec. 1039.101. All other
provisions of Sec. 1039.101(e) apply under this paragraph (g)(1). The
NTE standards do not apply for certain engines and certain pollutants,
as follows:
(i) All engines below 37 kW for model years before 2013.
(ii) All engines certified under Option #1 of Table 3 of
this section. These are small-volume manufacturer engines certified to
the Option #1 standards for model years 2008 through 2015 under
Sec. 1039.104(c), and other engines certified to the Option #1
standards for model years 2008 through 2012.
(iii) All engines less than or equal to 560 kW that are certified
to an FEL under the alternate FEL program during the first four years
of the Tier 4 standards for the applicable power category, as described
in Sec. 1039.104(g). However, if you apply to meet transient emission
standards for these engines under Sec. 1039.102(a)(1)(iii), you must
also meet the NTE standards in this paragraph (g)(1).
(iv) Gaseous pollutants for phase-out engines that you certify to
the same numerical standards and FELs for gaseous pollutants to which
you certified under the Tier 3 requirements of 40 CFR part 89. However,
the NTE standards for PM apply to these engines.
(2) Interim FEL caps. As described in 1039.101(d), you may
participate in the ABT program in subpart H of this part by certifying
engines to FELs for PM, NO_X, or NO_X+NMHC instead
of the standards in Tables 1 through 7 of this section for the model
years shown. The FEL caps listed in the following table apply instead
of the FEL caps inSec. 1039.101(d)(1), except as allowed by Sec.
1039.104(g):

Table 8 of Sec. 1039.102.--Interim Tier 4 FEL Caps, g/kW-hr
----------------------------------------------------------------------------------------------------------------
Model years
Maximum engine power Phase-in option \1\ PM NOX NOX+NMHC
----------------------------------------------------------------------------------------------------------------
kW < 19........................... ..................... 2008-2014 0.80 ........... \2\9.5
19 < = kW < 37..................... ..................... 2008-2012 0.60 ........... 9.5
37 < = kW < 56..................... ..................... \3\2008-2012 0.40 ........... 7.5
56 < = kW < 130.................... Phase-in............. 2012-2013 0.04 0.80 ...........
56 < = kW < 130.................... Phase-out............ 2012-2013 0.04 ........... \4\ 6.6

[[Page 39221]]

130 < = kW < = 560.................. Phase-in............. 2011-2013 0.04 0.80 ...........
130 < = kW < = 560.................. Phase-out............ 2011-2013 0.04 ........... \5\ 6.4
kW > 560.......................... ..................... 2011-2014 0.20 6.2 ...........
----------------------------------------------------------------------------------------------------------------
\1\ For model years before 2015 where this table does not specify FEL caps, apply the FEL caps shown in Sec.
1039.101.
\2\ For engines below 8 kW, the FEL cap is 10.5 g/kW-hr for NOX+NMHC emissions.
\3\ For manufacturers certifying engines to the standards of this part 1039 in 2012 under Option #2 of
Table 3 of Sec. 1039.102, the FEL caps of Sec. 1039.101 apply for model year 2012 and later; see 40 CFR
part 89 for provisions that apply to earlier model years.
\4\ For engines below 75 kW, the FEL cap is 7.5 g/kW-hr for NOX+NMHC emissions.
\5\ For engines below 225 kW, the FEL cap is 6.6 g/kW-hr for NOX+NMHC emissions.

(3) Crankcase emissions. The crankcase emission requirements of
Sec. 1039.115(a) do not apply to engines using charge-air compression
that are certified to an FEL under the alternate FEL program in Sec.
1039.104(g) during the first four years of the Tier 4 standards for the
applicable power category.
(4) Special provisions for 37-56 kW engines. For engines at or
above 37 kW and below 56 kW from model years 2008 through 2012, you
must take the following additional steps:
(i) State the applicable PM standard on the emission control
information label.
(ii) Add information to the emission-related installation
instructions to clarify the equipment manufacturer's obligations under
Sec. 1039.104(f).

Sec. 1039.104 Are there interim provisions that apply only for a
limited time?

The provisions in this section apply instead of other provisions in
this part. This section describes when these interim provisions apply.
(a) Incentives for early introduction. This paragraph (a) allows
you to reduce the number of engines subject to the applicable standards
in Sec. 1039.101 or Sec. 1039.102, when some of your engines are
certified to the specified levels earlier than otherwise required. The
engines that are certified early are considered offset-generating
engines. The provisions of this paragraph (a), which describe the
requirements applicable to offset-generating engines, apply beginning
in model year 2007. These offset generating engines may generate
additional allowances for equipment manufacturers under the incentive
program described in Sec. 1039.627; you may instead use these offsets
under paragraph (a)(2) of this section in some cases.
(1) For early-compliant engines to generate offsets for use either
under this paragraph (a) or under Sec. 1039.627, you must meet the
following general provisions:
(i) You may not generate offsets from engines below 19 kW.
(ii) You must begin actual production of engines covered by the
corresponding certificate by the following dates:
(A) For engines at or above 19 kW and below 37 kW: September 1, 2012.
(B) For engines at or above 37 kW and below 56 kW: September 1,
2012 if you choose Option #1 in Table 3 of Sec. 1039.102, or
September 1, 2011 if you do not choose Option #1 in Table 3 of
Sec. 1039.102.
(C) For engines in the 56-130 kW power category: September 1, 2011.
(D) For engines in the 130-560 kW power category: September 1, 2010.
(E) For engines above 560 kW: September 1, 2014.
(iii) Engines you produce after December 31 of the year shown in
paragraph (a)(1)(ii) of this section may not generate offsets.
(iv) You may not use ABT credits to certify offset-generating engines.
(v) Offset-generating engines must be certified to the Tier 4
standards and requirements under this part 1039.
(2) If equipment manufacturers decline offsets for your offset-
generating engines under Sec. 1039.627, you may not generate ABT
credits with these engines, but you may reduce the number of engines
that are required to meet the standards in Sec. 1039.101 or 1039.102
as follows:

----------------------------------------------------------------------------------------------------------------
You may reduce the
That are number of engines
With maximum certified to the in the same power
For every . . . engine power . . applicable category that are In later model years
. standards in . . required to meet by . . .
. the . . .

----------------------------------------------------------------------------------------------------------------
(i) 2 engines................. 19 < = kW < 37.... Table 2 of Sec. PM standard in 3 engines.
1039.102 \1\. Table 2 of Sec.
1039.102
applicable to
model year 2013
or 2014 engines
or the PM
standard in Table
1 of Sec.
1039.101.
(ii) 2 engines................ 56 < = kW < = 560.. Table 4, 5, or 6 Phase-out 3 engines.
of Sec. standards in
1039.102 for Tables 4 through
Phase-out 6 of Sec.
engines. 1039.102.
(iii) 2 engines............... kW >= 19......... Table 1 of Sec. Standards in 3 engines.\2\
1039.101. Tables 2 through
7 of Sec.
1039.102 or
standards in
Table 1 of Sec.
1039.101.
(iv) 1 engine................. kW >= 19......... Table 1 of Sec. Standards in 2 engines.\2\
1039.101 + 0.20 Tables 2 through
g/kW-hr NOX 7 of Sec.
standard. 1039.102 or
standards in
Table 1 of Sec.
1039.101.
----------------------------------------------------------------------------------------------------------------
\1\ The engine must be certified to the PM standard applicable to model year 2013 engines, and to the NOX+NMHC
and CO standards applicable to model year 2012 engines.
\2\ For engines above 560 kW, offsets from generator-set engines may be used only for generator-set engines.
Offsets from engines for other applications may be used only for other applications besides generator sets.

(3) Example: If you produce 100 engines in the 56-130 kW power
category in model year 2008 that are certified to the 56-130 kW
standards listed in Sec. 1039.101, and you produced 10,000 engines in
this power category in

[[Page 39222]]

model year 2015, then only 9,850 of these model year 2015 engines would
need to comply with the standards listed in Sec. 1039.101. The 100
offset-generating engines in model year 2008 could not use or generate
ABT credits.
(4) Offset-using engines (that is, those not required to certify to
the standards of Sec. 1039.101 or Sec. 1039.102 under paragraph
(a)(2) of this section) are subject to the following provisions:
(i) If the offset is being used under paragraph (a)(2)(i) of this
section for an engine that would otherwise be certified to the model
year 2013 or 2014 standards in Table 2 of Sec. 1039.102 or the
standards in Table 1 of Sec. 1039.101, this engine must be certified
to the standards and requirements of this part 1039, except that the
only PM standard that applies is the steady-state PM standard that
applies for model year 2012. Such an engine may not generate ABT credits.
(ii) If the offset is being used under paragraph (a)(2)(ii) of this
section for an engine that would otherwise be certified to the phase-
out standards in Tables 4 through 6 of Sec. 1039.102, this engine must
be certified to the standards and requirements of this part 1039,
except that the PM standard is the Tier 3 PM standard that applies for
this engine's maximum power. Such an engine will be treated as a phase-
out engine for purposes of determining compliance with percentage
phase-in requirements. Such an engine may not generate ABT credits.
(iii) All other offset-using engines must meet the standards and
other provisions that apply in model year 2011 for engines in the 19-
130 kW power categories, in model year 2010 for engines in the 130-560
kW power category, or in model year 2014 for engines above 560 kW. Show
that engines meet these emission standards by meeting all the
requirements of Sec. 1039.260. You must meet the labeling requirements
in Sec. 1039.135, but add the following statement instead of the
compliance statement in Sec. 1039.135(c)(12): ``THIS ENGINE MEETS U.S.
EPA EMISSION STANDARDS UNDER 40 CFR 1039.104(a).'' For power categories
with a percentage phase-in, these engines should be treated as phase-in
engines for purposes of determining compliance with phase-in requirements.
(5) If an equipment manufacturer claims offsets from your engine
for use under Sec. 1039.627, the engine generating the offset must
comply with the requirements of paragraph (a)(1) of this section. You
may not generate offsets for use under paragraphs (a)(2) and (5) of
this section for these engines. You may generate ABT credits from these
engines as follows:
(i) To generate emission credits for NO_X,
NO_X+NMHC, and PM, the engine must be certified to FELs at or
below the standards in paragraph (a)(2) of this section.
(ii) Calculate credits according to Sec. 1039.705 but use as the
applicable standard the numerical value of the standard to which the
engine would have otherwise been subject if it had not been certified
under this paragraph (a).
(iii) For the production volume, use the number of engines
certified under this paragraph (a) for which you do not claim offsets
under paragraph (a)(2) of this section.
(6) You may include engines used to generate offsets under this
paragraph (a) and engines used to generate offsets under Sec. 1039.627
in the same engine family, subject to the provisions of Sec. 1039.230.
The engine must be certified to FELs, as specified in paragraph
(a)(5)(i) of this section. The FELs must be below the standard levels
specified in paragraph (a)(2) of this section and those specified in
Sec. 1039.627. In the reports required in Sec. 1039.730, include the
following information for each model year:
(i) The total number of engines that generate offsets under this
paragraph (a).
(ii) The number of engines used to generate offsets under paragraph
(a)(2) of this section.
(iii) The names of equipment manufacturers that intend to use your
offsets under Sec. 1039.627 and the number of offsets involved for
each equipment manufacturer.
(b) In-use compliance limits. For purposes of determining
compliance after title or custody has transferred to the ultimate
purchaser, calculate the applicable in-use compliance limits by
adjusting the applicable standards or FELs. This applies only for
engines at or above 19 kW. The NO_X adjustment applies only
for engines with a NO_X FEL no higher than 2.1 g/kW-hr The PM
adjustment applies only for engines with a PM FEL no higher than the PM
standard in Sec. 1039.101 for the appropriate power category. Add the
following adjustments to the otherwise applicable standards or FELs
(steady-state, transient, and NTE) for NO_X and PM:

----------------------------------------------------------------------------------------------------------------
The PM
If your engine's maximum The NOX adjustment in g/kW- adjustment in
In model years . . . power is . . . hr is . . . g/kW-hr is . .
.
----------------------------------------------------------------------------------------------------------------
2013-2014............................ 19 < = kW < 56.............. not allowed................. 0.01
2012-2016............................ 56 < = kW < 130............. 0.16 for operating hours < = 0.01
2000.
0.25 for operating hours
2001 to 3400.
0.34 for operating hours >
3400.
2011-2015............................ 130 < = kW < 560............ 0.16 for operating hours < = 0.01
2000.
0.25 for operating hours
2001 to 3400.
0.34 for operating hours >
3400.
2011-2016............................ kW > 560................... 0.16 for operating hours <= 0.01
2000.
0.25 for operating hours
2001 to 3400.
0.34 for operating hours >
3400.
----------------------------------------------------------------------------------------------------------------

(c) Provisions for small-volume manufacturers. Special provisions
apply if you are a small-volume engine manufacturer subject to the
requirements of this part. You must notify us in writing before January
1, 2008 if you intend to use these provisions.
(1) You may delay complying with certain otherwise applicable Tier
4 emission standards and requirements as described in the following table:

[[Page 39223]]

----------------------------------------------------------------------------------------------------------------
Until model Before that model year the
If your engine's maximum power is . . . You may delay meeting . . . year . . . engine must comply with . .
.
----------------------------------------------------------------------------------------------------------------
kW < 19.................................. The standards and 2011 The standards and
requirements of this part. requirements in 40 CFR
part 89.
19 < = kW < 37............................ The Tier 4 standards and 2016 The Tier 4 standards and
requirements of this part requirements that apply
that would otherwise be for model year 2008.
applicable in model year
2013.
37 < = kW < 56............................ See paragraph (c)(2) of this section for special provisions that
apply for engines in this power category.
56 < = kW < 130........................... The standards and 2015 The standards and
requirements of this part. requirements in 40 CFR
part 89.
----------------------------------------------------------------------------------------------------------------

(2) To use the provisions of this paragraph (c) for engines at or
above 37 kW and below 56 kW, choose one of the following:
(i) If you comply with the 0.30 g/kW-hr PM standard in Sec.
1039.102 in all model years from 2008 through 2012 without using PM
credits, you may continue meeting that standard through 2015.
(ii) If you do not choose to comply with paragraph (c)(2)(i) of
this section, you may continue to comply with the standards and
requirements in 40 CFR part 89 for model years through 2012, but you
must begin complying in 2013 with Tier 4 standards and requirements
specified in Table 3 of Sec. 1039.102 for model years 2013 and later.
(3) After the delays indicated in paragraph (c)(1) and (2) of this
section, you must comply with the same Tier 4 standards and
requirements as all other manufacturers.
(4) For engines not in the 19-56 kW power category, if you delay
compliance with any standards under this paragraph (c), you must do all
the following things for the model years when you are delaying
compliance with the otherwise applicable standards:
(i) Produce engines that meet all the emission standards and other
requirements under 40 CFR part 89 applicable for that model year,
except as noted in this paragraph (c).
(ii) Meet the labeling requirements in 40 CFR 89.110, but use the
following compliance statement instead of the compliance statement in
40 CFR 89.110(b)(10): ``THIS ENGINE COMPLIES WITH U.S. EPA REGULATIONS
FOR [CURRENT MODEL YEAR]
NONROAD COMPRESSION-IGNITION ENGINES UNDER 40
CFR 1039.104(c).''.
(iii) Notify the equipment manufacturer that the engines you
produce under this section are excluded from the production volumes
associated with the equipment-manufacturer allowance program in Sec.
1039.625.
(5) For engines in the 19-56 kW power category, if you delay
compliance with any standards under this paragraph (c), you must do all
the following things for the model years when you are delaying
compliance with the otherwise applicable standards:
(i) Produce engines in those model years that meet all the emission
standards and other requirements that applied for your model year 2008
engines in the same power category.
(ii) Meet the labeling requirements in Sec. 1039.135, but use the
following compliance statement instead of the compliance statement in
Sec. 1039.135: ``THIS ENGINE COMPLIES WITH U.S. EPA REGULATIONS FOR
[CURRENT MODEL YEAR]
NONROAD COMPRESSION-IGNITION ENGINES UNDER 40 CFR
1039.104(c).''.
(iii) Notify the equipment manufacturer that the engines you
produce under this section are excluded from the production volumes
associated with the equipment-manufacturer allowance program in Sec.
1039.625.
(6) The provisions of this paragraph (c) may not be used to
circumvent the requirements of this part.
(d) Deficiencies for NTE standards. You may ask us to accept as
compliant an engine that does not fully meet specific requirements
under the applicable NTE standards. Such deficiencies are intended to
allow for minor deviations from the NTE standards under limited
conditions. We expect your engines to have functioning emission-control
hardware that allows you to comply with the NTE standards.
(1) Request our approval for specific deficiencies in your
application for certification, or before you submit your application.
We will not approve deficiencies retroactively to cover engines already
certified. In your request, identify the scope of each deficiency and
describe any auxiliary emission-control devices you will use to control
emissions to the lowest practical level, considering the deficiency you
are requesting.
(2) We will approve a deficiency only if compliance would be
infeasible or unreasonable considering such factors as the technical
feasibility of the given hardware and the applicable lead time and
production cycles--including schedules related to phase-in or phase-out
of engines. We may consider other relevant factors.
(3) Our approval applies only for a single model year and may be
limited to specific engine configurations. We may approve your request
for the same deficiency in the following model year if correcting the
deficiency would require unreasonable hardware or software
modifications and we determine that you have demonstrated an acceptable
level of effort toward complying.
(4) You may ask for any number of deficiencies in the first three
model years during which NTE standards apply for your engines. For the
next four model years, we may approve up to three deficiencies per
engine family. Deficiencies of the same type that apply similarly to
different power ratings within a family count as one deficiency per
family. We may condition approval of any such additional deficiencies
during these four years on any additional conditions we determine to be
appropriate. We will not approve deficiencies after the seven-year
period specified in this paragraph (d)(4).
(e) Diesel test fuels and corresponding labeling requirements. For
diesel-fueled engines in 2011 and later model years, the diesel test
fuel is ultra low-sulfur diesel fuel specified in 40 CFR part 1065. For
diesel-fueled engines in 2010 and earlier model years, use test fuels
and meet labeling requirements as follows:
(1) Use the following test fuels in 2010 and earlier model years:
(i) Unless otherwise specified, the diesel test fuel is low-sulfur
diesel fuel specified in 40 CFR part 1065.
(ii) In model years 2007 through 2010, you may use ultra low-sulfur
diesel fuel as the test fuel for any engine family that employs sulfur-
sensitive technology if you can demonstrate that in-use engines in the
family will use diesel fuel with a sulfur concentration no greater than
15 ppm.
(iii) You may use ultra low-sulfur diesel fuel as the test fuel for
engine families in any power category below 56 kW, as long as none of
the engines in your engine family employ sulfur-

[[Page 39224]]

sensitive technologies, you ensure that ultimate purchasers of
equipment using these engines are informed that ultra low-sulfur diesel
fuel is recommended, and you recommend to equipment manufacturers that
a label be applied at the fuel inlet recommending 15 ppm fuel.
(iv) For the engines described in Sec. 1039.101(c) that are
certified to the 0.60 g/kW-hr PM standard in Table 1 of Sec. 1039.102
in the 2010 model year, you may test with the ultra low-sulfur fuel
specified in 40 CFR part 1065.
(2) Meet the labeling requirements of this paragraph (e)(2) (or
other labeling requirements we approve) to identify the applicable test
fuels specified in paragraph (e)(1) of this section. Provide
instructions to equipment manufacturers to ensure that they are aware
of these labeling requirements.
(i) For engines certified under the provisions of paragraph
(e)(1)(i) of this section, include the following statement on the
emission control information label and the fuel-inlet label specified
in Sec. 1039.135: ``LOW SULFUR FUEL OR ULTRA LOW SULFUR FUEL ONLY''.
(ii) For engines certified under the provisions of paragraph
(e)(1)(ii) of this section, include the following statement on the
emission control information label and the fuel-inlet label specified
in Sec. 1039.135: ``ULTRA LOW SULFUR FUEL ONLY''.
(iii) For engines certified under the provisions of paragraph
(e)(1)(iii) of this section, include the following statement on the
emission control information label specified in Sec. 1039.135: ``ULTRA
LOW SULFUR FUEL RECOMMENDED''.
(3) For model years 2010 and earlier, we will use the test fuel
that you use under paragraph (e)(1) of this section, subject to the
conditions of paragraph (e)(1) of this section.
(f) Requirements for equipment manufacturers. If you produce
equipment with engines certified to Tier 3 standards under Option
#2 of Table 3 of Sec. 1039.102 during model years from 2008
through 2011, then a minimum number of pieces of equipment you produce
using 2012 model year engines must have engines certified to the Option
#2 standards, as follows:
(1) For equipment you produce with 2012 model year engines at or
above 37 kW and below 56 kW, determine the minimum number of these
engines that must be certified to the Option #2 standards in
Table 3 of Sec. 1039.102 as follows:
(i) If all the equipment you produce using 2008 through 2011 model
year engines use engines certified to Tier 3 standards under Option
#2 of Table 3 of Sec. 1039.102, then all the 2012 model year
engines you install must be certified to the Option #2
standards of Table 3 of Sec. 1039.102.
(ii) If you produce equipment using 2008 through 2011 model year
engines with some engines certified to Option #1 standards of
Table 3 of Sec. 1039.102 and some engines certified to Tier 3
standards under Option #2 standards of Table 3 of Sec.
1039.102, calculate the minimum number of 2012 model year engines you
must install that are certified to the Option #2 standards of
Table 3 of Sec. 1039.102 from the following equation:

Minimum number = [(T-O₁-F)/(T-F)-0.05]
x P

Where:
T = The total number of 2008-2010 model year engines at or above 37
kW and below 56 kW that you use in equipment you produce.
O₁ = The number of engines from the 2008-2010 model years
certified under Option #1 of Table 3 of Sec. 1039.102 that
you use in equipment you produce.
F = The number of 2008-2010 model year engines at or above 37 kW and
below 56 kW that you use in equipment you produce under the
flexibility provisions of Sec. 1039.625.
P = The total number of 2012 model year engines at or above 37 kW
and below 56 kW that you use in equipment you produce.

(2) As needed for the calculation required by this paragraph (f),
keep records of all equipment you produce using 2008-2012 model year
engines at or above 37 kW and below 56 kW. If you fail to keep these
records, you may not use any 2012 model year engines certified to
Option #1 standards in your equipment.
(3) If you fail to comply with the provisions of this paragraph
(f), then using 2012 model year engines certified under Option
#1 of Table 3 of Sec. 1039.102 (or certified to less stringent
standards) in such equipment violates the prohibitions in Sec.
1068.101(a)(1).
(g) Alternate FEL caps. You may certify a limited number of engines
from your U.S.-directed production volume to the FEL caps in Table 1 of
this section instead of the otherwise applicable FEL caps in Sec.
1039.101(d)(1), Sec. 1039.102(e), or Sec. 1039.102(g)(2), subject to
the following provisions:
(1) The provisions of this paragraph (g) apply during the model
years shown in Table 1 of this section. During this period, the number
of engines certified to the FEL caps in Table 1 of this section must
not exceed 20 percent in any single model year in each power category.
The sum of percentages over the four-year period must not exceed a
total of 40 percent in each power category. If you certify an engine
under an alternate FEL cap in this paragraph (g) for any pollutant,
count it toward the allowed percentage of engines certified to the
alternate FEL caps.
(2) If your engine is not certified to transient emission standards
under the provisions of Sec. 1039.102(a)(1)(iii), you must adjust your
FEL upward by a temporary compliance adjustment factor (TCAF) before
calculating your negative emission credits under Sec. 1039.705, as
follows:
(i) The temporary compliance adjustment factor for NO_X
is 1.1.
(ii) The temporary compliance adjustment factor for PM is 1.5.
(iii) The adjusted FEL (FEL_adj) for calculating emission
credits is determined from the steady-state FEL (FEL_ss)
using the following equation:

FEL_adj = (FEL_ss) x (TCAF)

(iv) The unadjusted FEL (FEL_ss) applies for all purposes
other than credit calculation.
(3) These alternate FEL caps may not be used for phase-in engines.
(4) Do not apply TCAFs to gaseous emissions for phase-out engines
that you certify to the same numerical standards (and FELs if the
engines are certified using ABT) for gaseous pollutants as you
certified under the Tier 3 requirements of 40 CFR part 89.

Table 1 of Sec. 1039.104.--Alternate FEL Caps
----------------------------------------------------------------------------------------------------------------
Model years Model years
PM FEL cap, g/ for the NOX FEL cap, g/ for the
Maximum engine power kW-hr alternate PM kW-hr alternate NOX
FEL cap FEL cap
----------------------------------------------------------------------------------------------------------------
19 < = kW < 56................................... 0.30 \1\ 2012-2015 .............. ..............
56 < = kW < 130 \2\.............................. 0.30 \3\ 2012-2015 3.8 \3\ 2014-2015
130 < = kW < = 560................................ 0.20 2011-2014 3.8 2014

[[Page 39225]]

kW > 560 \4\.................................... 0.10 2015-2018 3.5 2015-2018
----------------------------------------------------------------------------------------------------------------
\1\ For manufacturers certifying engines under Option #1 of Table 3 of Sec. 1039.102, these alternate
FEL caps apply for model years from 2013 through 2016.
\2\ For engines below 75 kW, the FEL caps are 0.40 g/kW-hr for PM emissions and 4.4 g/kW-hr for NOX emissions.
\3\ For engines certified under the provisions of Sec. 1039.102(d)(2) or (e)(1)(ii), the alternate NOX FEL cap
in the table applies only for the 2015 model year.
\4\ For engines above 560 kW, the provision for alternate NOX FEL caps is limited to generator-set engines. For
example, if you produce 1,000 generator-set engines above 560 kW in 2015, up to 200 of them may be certified
to the alternate NOX FEL caps.

Sec. 1039.105 What smoke standards must my engines meet?

(a) The smoke standards in this section apply to all engines
subject to emission standards under this part, except for the following
engines:
(1) Single-cylinder engines.
(2) Constant-speed engines.
(3) Engines certified to a PM emission standard or FEL of 0.07 g/
kW-hr or lower.
(b) Measure smoke as specified in Sec. 1039.501(c). Smoke from
your engines may not exceed the following standards:
(1) 20 percent during the acceleration mode.
(2) 15 percent during the lugging mode.
(3) 50 percent during the peaks in either the acceleration or
lugging modes.

Sec. 1039.107 What evaporative emission standards and requirements apply?

There are no evaporative emission standards for diesel-fueled
engines, or engines using other nonvolatile or nonliquid fuels (for
example, natural gas). If your engine uses a volatile liquid fuel, such
as methanol, you must meet the evaporative emission requirements of 40
CFR part 1048 that apply to spark-ignition engines, as follows:
(a) Follow the steps in 40 CFR 1048.245 to show that you meet the
requirements of 40 CFR 1048.105.
(b) Do the following things in your application for certification:
(1) Describe how your engines control evaporative emissions.
(2) Present test data to show that equipment using your engines
meets the evaporative emission standards we specify in this section if
you do not use design-based certification under 40 CFR 1048.245. Show
these figures before and after applying deterioration factors, where
applicable.

Sec. 1039.110 [Reserved]

Sec. 1039.115 What other requirements must my engines meet?

Engines subject to this part must meet the following requirements,
except as noted elsewhere in this part:
(a) Crankcase emissions. Crankcase emissions may not be discharged
directly into the ambient atmosphere from any engine, except as
follows:
(1) Engines may discharge crankcase emissions to the ambient
atmosphere if the emissions are added to the exhaust emissions (either
physically or mathematically) during all emission testing.
(2) If you take advantage of this exception, you must do the
following things:
(i) Manufacture the engines so that all crankcase emissions can be
routed into the applicable sampling systems specified in 40 CFR part 1065.
(ii) Account for deterioration in crankcase emissions when
determining exhaust deterioration factors.
(3) For purposes of this paragraph (a), crankcase emissions that
are routed to the exhaust upstream of exhaust aftertreatment during all
operation are not considered to be discharged directly into the ambient
atmosphere.
(b)-(d) [Reserved]
(e) Adjustable parameters. Engines that have adjustable parameters
must meet all the requirements of this part for any adjustment in the
physically adjustable range. An operating parameter is not considered
adjustable if you permanently seal it or if it is not normally
accessible using ordinary tools. We may require that you set adjustable
parameters to any specification within the adjustable range during any
testing, including certification testing, selective enforcement
auditing, or in-use testing.
(f) Prohibited controls. You may not design your engines with
emission-control devices, systems, or elements of design that cause or
contribute to an unreasonable risk to public health, welfare, or safety
while operating. For example, this would apply if the engine emits a
noxious or toxic substance it would otherwise not emit that contributes
to such an unreasonable risk.
(g) Defeat devices. You may not equip your engines with a defeat
device. A defeat device is an auxiliary emission-control device that
reduces the effectiveness of emission controls under conditions that
the engine may reasonably be expected to encounter during normal
operation and use. This does not apply to auxiliary-emission control
devices you identify in your certification application if any of the
following is true:
(1) The conditions of concern were substantially included in the
applicable test procedures described in subpart F of this part.
(2) You show your design is necessary to prevent engine (or
equipment) damage or accidents.
(3) The reduced effectiveness applies only to starting the engine.

Sec. 1039.120 What emission-related warranty requirements apply to me?

(a) General requirements. You must warrant to the ultimate
purchaser and each subsequent purchaser that the new nonroad engine,
including all parts of its emission-control system, meets two conditions:
(1) It is designed, built, and equipped so it conforms at the time
of sale to the ultimate purchaser with the requirements of this part.
(2) It is free from defects in materials and workmanship that may
keep it from meeting these requirements.
(b) Warranty period. Your emission-related warranty must be valid
for at least as long as the minimum warranty periods listed in this
paragraph (b) in hours of operation and years, whichever comes first.
You may offer an emission-related warranty more generous than we
require. The emission-related warranty for the engine may not be
shorter than any published warranty you offer without charge for the
engine. Similarly, the emission-related warranty for any component may
not be shorter than any published warranty you offer without charge for
that component. If you provide an extended warranty to individual
owners for any components covered in paragraph (c) of this section

[[Page 39226]]

for an additional charge, your emission-related warranty must cover
those components for those owners to the same degree. If an engine has
no hour meter, we base the warranty periods in this paragraph (b) only
on the engine's age (in years). The warranty period begins when the
engine is placed into service. The minimum warranty periods are shown
in the following table:

----------------------------------------------------------------------------------------------------------------
And its maximum power And its rated speed is Then its warranty
If your engine is certified as . . . is . . . . . . period is . . .
----------------------------------------------------------------------------------------------------------------
Variable speed or constant speed..... kW < 19................ Any speed.............. 1,500 hours or two
years, whichever comes
first.
Constant speed....................... 19 < = kW < 37.......... 3,000 rpm or higher.... 1,500 hours or two
years, whichever comes
first.
Constant speed....................... 19 < = kW < 37.......... Less than 3,000 rpm.... 3,000 hours or five
years, whichever comes
first.
Variable speed....................... 19 < = kW < 37.......... Any speed.............. 3,000 hours or five
years, whichever comes
first.
Variable speed or constant speed..... kW >= 37............... Any speed.............. 3,000 hours or five
years, whichever comes
first.
----------------------------------------------------------------------------------------------------------------

(c) Components covered. The emission-related warranty covers all
components whose failure would increase an engine's emissions of any
pollutant. This includes components listed in 40 CFR part 1068,
Appendix I, and components from any other system you develop to control
emissions. The emission-related warranty covers these components even
if another company produces the component. Your emission-related
warranty does not cover components whose failure would not increase an
engine's emissions of any pollutant.
(d) Limited applicability. You may deny warranty claims under this
section if the operator caused the problem through improper maintenance
or use, as described in 40 CFR 1068.115.
(e) Owners manual. Describe in the owners manual the emission-
related warranty provisions from this section that apply to the engine.

Sec. 1039.125 What maintenance instructions must I give to buyers?

Give the ultimate purchaser of each new nonroad engine written
instructions for properly maintaining and using the engine, including
the emission-control system. The maintenance instructions also apply to
service accumulation on your emission-data engines, as described in
Sec. 1039.245 and in 40 CFR part 1065.
(a) Critical emission-related maintenance. Critical emission-
related maintenance includes any adjustment, cleaning, repair, or
replacement of critical emission-related components. This may also
include additional emission-related maintenance that you determine is
critical if we approve it in advance. You may schedule critical
emission-related maintenance on these components if you meet the
following conditions:
(1) You demonstrate that the maintenance is reasonably likely to be
done at the recommended intervals on in-use engines. We will accept
scheduled maintenance as reasonably likely to occur if you satisfy any
of the following conditions:
(i) You present data showing that, if a lack of maintenance
increases emissions, it also unacceptably degrades the engine's performance.
(ii) You present survey data showing that at least 80 percent of
engines in the field get the maintenance you specify at the recommended
intervals.
(iii) You provide the maintenance free of charge and clearly say so
in maintenance instructions for the customer.
(iv) You otherwise show us that the maintenance is reasonably
likely to be done at the recommended intervals.
(2) For engines below 130 kW, you may not schedule critical
emission-related maintenance more frequently than the following minimum
intervals, except as specified in paragraphs (a)(4), (b), and (c) of
this section:
(i) For EGR-related filters and coolers, PCV valves, and fuel
injector tips (cleaning only), the minimum interval is 1,500 hours.
(ii) For the following components, including associated sensors and
actuators, the minimum interval is 3000 hours: fuel injectors,
turbochargers, catalytic converters, electronic control units,
particulate traps, trap oxidizers, components related to particulate
traps and trap oxidizers, EGR systems (including related components,
but excluding filters and coolers), and other add-on components. For
particulate traps, trap oxidizers, and components related to either of
these, maintenance is limited to cleaning and repair only.
(3) For engines at or above 130 kW, you may not schedule critical
emission-related maintenance more frequently than the following minimum
intervals, except as specified in paragraphs (a)(4), (b), and (c) of
this section:
(i) For EGR-related filters and coolers, PCV valves, and fuel
injector tips (cleaning only), the minimum interval is 1,500 hours.
(ii) For the following components, including associated sensors and
actuators, the minimum interval is 4500 hours: fuel injectors,
turbochargers, catalytic converters, electronic control units,
particulate traps, trap oxidizers, components related to particulate
traps and trap oxidizers, EGR systems (including related components,
but excluding filters and coolers), and other add-on components. For
particulate traps, trap oxidizers, and components related to either of
these, maintenance is limited to cleaning and repair only.
(4) If your engine family has an alternate useful life under Sec.
1039.101(g) that is shorter than the period specified in paragraph
(a)(2) or (a)(3) of this section, you may not schedule critical
emission-related maintenance more frequently than the alternate useful
life, except as specified in paragraph (c) of this section.
(b) Recommended additional maintenance. You may recommend any
additional amount of maintenance on the components listed in paragraph
(a) of this section, as long as you state clearly that these
maintenance steps are not necessary to keep the emission-related
warranty valid. If operators do the maintenance specified in paragraph
(a) of this section, but not the recommended additional maintenance,
this does not allow you to disqualify those engines from in-use testing
or deny a warranty claim. Do not take these maintenance steps during
service accumulation on your emission-data engines.
(c) Special maintenance. You may specify more frequent maintenance
to address problems related to special situations, such as atypical
engine operation. You must clearly state that this additional
maintenance is

[[Page 39227]]

associated with the special situation you are addressing.
(d) Noncritical emission-related maintenance. You may schedule any
amount of emission-related inspection or maintenance that is not
covered by paragraph (a) of this section, as long as you state in the
owners manual that these steps are not necessary to keep the emission-
related warranty valid. If operators fail to do this maintenance, this
does not allow you to disqualify those engines from in-use testing or
deny a warranty claim. Do not take these inspection or maintenance
steps during service accumulation on your emission-data engines.
(e) Maintenance that is not emission-related. For maintenance
unrelated to emission controls, you may schedule any amount of
inspection or maintenance. You may also take these inspection or
maintenance steps during service accumulation on your emission-data
engines, as long as they are reasonable and technologically necessary.
This might include adding engine oil, changing air, fuel, or oil
filters, servicing engine-cooling systems, and adjusting idle speed,
governor, engine bolt torque, valve lash, or injector lash. You may
perform this nonemission-related maintenance on emission-data engines
at the least frequent intervals that you recommend to the ultimate
purchaser (but not the intervals recommended for severe service).
(f) Source of parts and repairs. State clearly on the first page of
your written maintenance instructions that a repair shop or person of
the owner's choosing may maintain, replace, or repair emission-control
devices and systems. Your instructions may not require components or
service identified by brand, trade, or corporate name. Also, do not
directly or indirectly condition your warranty on a requirement that
the equipment be serviced by your franchised dealers or any other
service establishments with which you have a commercial relationship.
You may disregard the requirements in this paragraph (f) if you do one
of two things:
(1) Provide a component or service without charge under the
purchase agreement.
(2) Get us to waive this prohibition in the public's interest by
convincing us the engine will work properly only with the identified
component or service.
(g) Payment for scheduled maintenance. Owners are responsible for
properly maintaining their engines. This generally includes paying for
scheduled maintenance. However, manufacturers must pay for scheduled
maintenance if it meets all the following criteria:
(1) Each affected component was not in general use on similar
engines before the applicable dates shown in paragraph (6) of the
definition of new nonroad engine in Sec. 1039.801.
(2) The primary function of each affected component is to reduce
emissions.
(3) The cost of the scheduled maintenance is more than 2 percent of
the price of the engine.
(4) Failure to perform the maintenance would not cause clear
problems that would significantly degrade the engine's performance.
(h) Owners manual. Explain the owner's responsibility for proper
maintenance in the owners manual.

Sec. 1039.130 What installation instructions must I give to equipment
manufacturers?

(a) If you sell an engine for someone else to install in a piece of
nonroad equipment, give the engine installer instructions for
installing it consistent with the requirements of this part. Include
all information necessary to ensure that an engine will be installed in
its certified configuration.
(b) Make sure these instructions have the following information:
(1) Include the heading: ``Emission-related installation
instructions''.
(2) State: ``Failing to follow these instructions when installing a
certified engine in a piece of nonroad equipment violates federal law
(40 CFR 1068.105(b)), subject to fines or other penalties as described
in the Clean Air Act.''.
(3) Describe the instructions needed to properly install the
exhaust system and any other components consistent with the
requirements of Sec. 1039.205(u).
(4) [Reserved]
(5) Describe any limits on the range of applications needed to
ensure that the engine operates consistently with your application for
certification. For example, if your engines are certified only for
constant-speed operation, tell equipment manufacturers not to install
the engines in variable-speed applications.
(6) Describe any other instructions to make sure the installed
engine will operate according to design specifications in your
application for certification. This may include, for example,
instructions for installing aftertreatment devices when installing the
engines.
(7) State: ``If you install the engine in a way that makes the
engine's emission control information label hard to read during normal
engine maintenance, you must place a duplicate label on the equipment,
as described in 40 CFR 1068.105.''.
(8) Describe equipment-labeling requirements consistent with Sec.
1039.135. State whether you are providing the label for the fuel inlet
or the equipment manufacturer must provide the label.
(c) You do not need installation instructions for engines you
install in your own equipment.
(d) Provide instructions in writing or in an equivalent format. For
example, you may post instructions on a publicly available website for
downloading or printing. If you do not provide the instructions in
writing, explain in your application for certification how you will
ensure that each installer is informed of the installation requirements.

Sec. 1039.135 How must I label and identify the engines I produce?

(a) Assign each engine a unique identification number and
permanently affix, engrave, or stamp it on the engine in a legible way.
(b) At the time of manufacture, affix a permanent and legible label
identifying each engine. The label must be--
(1) Attached in one piece so it is not removable without being
destroyed or defaced. However, you may use two-piece labels for engines
below 19 kW if there is not enough space on the engine to apply a one-
piece label.
(2) Secured to a part of the engine needed for normal operation and
not normally requiring replacement.
(3) Durable and readable for the engine's entire life.
(4) Written in English.
(c) The label must--
(1) Include the heading ``EMISSION CONTROL INFORMATION''.
(2) Include your full corporate name and trademark. You may
identify another company and use its trademark instead of yours if you
comply with the provisions of Sec. 1039.640.
(3) Include EPA's standardized designation for the engine family
(and subfamily, where applicable).
(4) State the power category or subcategory from Sec. 1039.101 or
Sec. 1039.102 that determines the applicable emission standards for
the engine family.
(5) State the engine's displacement (in liters); however, you may
omit this from the label if all the engines in the engine family have
the same per-cylinder displacement and total displacement.
(6) State the date of manufacture [MONTH and YEAR]. You may omit
this from the label if you keep a record of the engine-manufacture
dates and provide it to us upon request.

[[Page 39228]]

(7) State the FELs to which the engines are certified if
certification depends on the ABT provisions of subpart H of this part.
(8) Identify the emission-control system. Use terms and
abbreviations consistent with SAE J1930 (incorporated by reference in
Sec. 1039.810). You may omit this information from the label if there
is not enough room for it and you put it in the owners manual instead.
(9) For diesel-fueled engines, unless otherwise specified in Sec.
1039.104(e)(2), state: ``ULTRA LOW SULFUR FUEL ONLY'.
(10) Identify any additional requirements for fuel and lubricants
that do not involve fuel-sulfur levels. You may omit this information
from the label if there is not enough room for it and you put it in the
owners manual instead.
(11) State the useful life for your engine family if we approve a
shortened useful life under Sec. 1039.101(g)(2).
(12) State: ``THIS ENGINE COMPLIES WITH U.S. EPA REGULATIONS FOR
[MODEL YEAR]
NONROAD DIESEL ENGINES.''.
(13) For engines above 560 kW, include the following things:
(i) For engines certified to the emission standards for generator-
set engines, add the phrase ``FOR GENERATOR SETS AND OTHER
APPLICATIONS''.
(ii) For all other engines, add the phrase ``NOT FOR USE IN A
GENERATOR SET''.
(14) If your engines are certified only for constant-speed
operation, state ``USE IN CONSTANT-SPEED APPLICATIONS ONLY''.
(d) You may add information to the emission control information
label to identify other emission standards that the engine meets or
does not meet (such as European standards). You may also add other
information to ensure that the engine will be properly maintained and
used.
(e) Except as specified in Sec. 1039.104(e)(2), create a separate
label with the statement: ``ULTRA LOW SULFUR FUEL ONLY''. Permanently
attach this label to the equipment near the fuel inlet or, if you do
not manufacture the equipment, take one of the following steps to
ensure that the equipment will be properly labeled:
(1) Provide the label to the equipment manufacturer and include the
appropriate information in the emission-related installation
instructions.
(2) Confirm that the equipment manufacturers install their own
complying labels.
(f) You may ask us to approve modified labeling requirements in
this part 1039 if you show that it is necessary or appropriate. We will
approve your request if your alternate label is consistent with the
requirements of this part.
(g) If you obscure the engine label while installing the engine in
the equipment, you must place a duplicate label on the equipment. If
others install your engine in their equipment in a way that obscures
the engine label, we require them to add a duplicate label on the
equipment (see 40 CFR 1068.105); in that case, give them the number of
duplicate labels they request and keep the following records for at
least five years:
(1) Written documentation of the request from the equipment
manufacturer.
(2) The number of duplicate labels you send and the date you sent them.

Sec. 1039.140 What is my engine's maximum engine power?

(a) An engine configuration's maximum engine power is the maximum
brake power point on the nominal power curve for the engine
configuration, as defined in this section. Round the power value to the
nearest whole kilowatt.
(b) The nominal power curve of an engine configuration is the
relationship between maximum available engine brake power and engine
speed for an engine, using the mapping procedures of 40 CFR part 1065,
based on the manufacturer's design and production specifications for
the engine. This information may also be expressed by a torque curve
that relates maximum available engine torque with engine speed.
(c) The nominal power curve must be within the range of the actual
power curves of production engines considering normal production
variability. If after production begins it is determined that your
nominal power curve does not represent production engines, we may
require you to amend your application for certification under Sec.
1039.225.
(d) Throughout this part, references to a specific power value or a
range of power values for an engine are based on maximum engine power.
For example, the group of engines with maximum engine power above 560
kW may be referred to as engines above 560 kW.

Subpart C--Certifying Engine Families

Sec. 1039.201 What are the general requirements for obtaining a
certificate of conformity?

(a) You must send us a separate application for a certificate of
conformity for each engine family. A certificate of conformity is valid
from the indicated effective date until December 31 of the model year
for which it is issued.
(b) The application must contain all the information required by
this part and must not include false or incomplete statements or
information (see Sec. 1039.255).
(c) We may ask you to include less information than we specify in
this subpart, as long as you maintain all the information required by
Sec. 1039.250.
(d) You must use good engineering judgment for all decisions
related to your application (see 40 CFR 1068.5).
(e) An authorized representative of your company must approve and
sign the application.
(f) See Sec. 1039.255 for provisions describing how we will
process your application.
(g) We may require you to deliver your test engines to a facility
we designate for our testing (see Sec. 1039.235(c)).

Sec. 1039.205 What must I include in my application?

This section specifies the information that must be in your
application, unless we ask you to include less information under Sec.
1039.201(c). We may require you to provide additional information to
evaluate your application.
(a) Describe the engine family's specifications and other basic
parameters of the engine's design and emission controls. List the fuel
type on which your engines are designed to operate (for example, ultra
low-sulfur diesel fuel). List each distinguishable engine configuration
in the engine family. For each engine configuration, list the maximum
engine power and the range of values for maximum engine power resulting
from production tolerances, as described in Sec. 1039.140.
(b) Explain how the emission-control system operates. Describe in
detail all system components for controlling exhaust emissions,
including all auxiliary-emission control devices (AECDs) and all fuel-
system components you will install on any production or test engine.
Identify the part number of each component you describe. For this
paragraph (b), treat as separate AECDs any devices that modulate or
activate differently from each other. Include all the following:

[[Page 39229]]

(1) Give a general overview of the engine, the emission-control
strategies, and all AECDs.
(2) Describe each AECD's general purpose and function.
(3) Identify the parameters that each AECD senses (including
measuring, estimating, calculating, or empirically deriving the
values). Include equipment-based parameters and state whether you
simulate them during testing with the applicable procedures.
(4) Describe the purpose for sensing each parameter.
(5) Identify the location of each sensor the AECD uses.
(6) Identify the threshold values for the sensed parameters that
activate the AECD.
(7) Describe the parameters that the AECD modulates (controls) in
response to any sensed parameters, including the range of modulation
for each parameter, the relationship between the sensed parameters and
the controlled parameters and how the modulation achieves the AECD's
stated purpose. Use graphs and tables, as necessary.
(8) Describe each AECD's specific calibration details. This may be
in the form of data tables, graphical representations, or some other
description.
(9) Describe the hierarchy among the AECDs when multiple AECDs
sense or modulate the same parameter. Describe whether the strategies
interact in a comparative or additive manner and identify which AECD
takes precedence in responding, if applicable.
(10) Explain the extent to which the AECD is included in the
applicable test procedures specified in subpart F of this part.
(11) Do the following additional things for AECDs designed to
protect engines or equipment:
(i) Identify the engine and/or equipment design limits that make
protection necessary and describe any damage that would occur without
the AECD.
(ii) Describe how each sensed parameter relates to the protected
components' design limits or those operating conditions that cause the
need for protection.
(iii) Describe the relationship between the design limits/
parameters being protected and the parameters sensed or calculated as
surrogates for those design limits/parameters, if applicable.
(iv) Describe how the modulation by the AECD prevents engines and/
or equipment from exceeding design limits.
(v) Explain why it is necessary to estimate any parameters instead
of measuring them directly and describe how the AECD calculates the
estimated value, if applicable.
(vi) Describe how you calibrate the AECD modulation to activate
only during conditions related to the stated need to protect components
and only as needed to sufficiently protect those components in a way
that minimizes the emission impact.
(c) [Reserved]
(d) Describe the engines you selected for testing and the reasons
for selecting them.
(e) Describe the test equipment and procedures that you used,
including any special or alternate test procedures you used (see Sec.
1039.501).
(f) Describe how you operated the emission-data engine before
testing, including the duty cycle and the number of engine operating
hours used to stabilize emission levels. Explain why you selected the
method of service accumulation. Describe any scheduled maintenance you
did.
(g) List the specifications of the test fuel to show that it falls
within the required ranges we specify in 40 CFR part 1065.
(h) Identify the engine family's useful life.
(i) Include the maintenance instructions you will give to the
ultimate purchaser of each new nonroad engine (see Sec. 1039.125).
(j) Include the emission-related installation instructions you will
provide if someone else installs your engines in a piece of nonroad
equipment (see Sec. 1039.130).
(k) Describe your emission control information label (see Sec.
1039.135).
(l) Identify the emission standards or FELs to which you are
certifying engines in the engine family. Identify the ambient operating
regions that will apply for NTE testing under Sec. 1039.101(e)(4).
(m) Identify the engine family's deterioration factors and describe
how you developed them (see Sec. 1039.245). Present any emission test
data you used for this.
(n) State that you operated your emission-data engines as described
in the application (including the test procedures, test parameters, and
test fuels) to show you meet the requirements of this part.
(o) Present emission data for hydrocarbons (such as NMHC or THCE,
as applicable), NO_X, PM, and C_O on an emission-
data engine to show your engines meet the applicable duty-cycle
emission standards we specify in Sec. 1039.101. Show emission data
figures before and after applying adjustment factors for regeneration
and deterioration factors for each engine. Present emission data to
show that you meet any applicable smoke standards we specify in Sec.
1039.105. If we specify more than one grade of any fuel type (for
example, high-sulfur and low-sulfur diesel fuel), you need to submit
test data only for one grade, unless the regulations of this part
specify otherwise for your engine. Note that Sec. 1039.235 allows you
to submit an application in certain cases without new emission data.
(p) State that all the engines in the engine family comply with the
not-to-exceed emission standards we specify in subpart B of this part
for all normal operation and use when tested as specified in Sec.
1039.515. Describe any relevant testing, engineering analysis, or other
information in sufficient detail to support your statement.
(q) For engines above 560 kW, include information showing how your
emission controls will function during normal in-use transient
operation. For example, this might include the following:
(1) Emission data from transient testing of engines using
measurement systems designed for measuring in-use emissions.
(2) Comparison of the engine design for controlling transient
emissions with that from engines for which you have emission data over
the transient duty cycle for certification.
(3) Detailed descriptions of control algorithms and other design
parameters for controlling transient emissions.
(r) Report all test results, including those from invalid tests or
from any other tests, whether or not they were conducted according to
the test procedures of subpart F of this part. If you measure
CO₂, report those emission levels. We may ask you to send
other information to confirm that your tests were valid under the
requirements of this part and 40 CFR part 1065.
(s) Describe all adjustable operating parameters (see Sec.
1039.115(e)), including production tolerances. Include the following in
your description of each parameter:
(1) The nominal or recommended setting.
(2) The intended physically adjustable range.
(3) The limits or stops used to establish adjustable ranges.
(4) Information showing why the limits, stops, or other means of
inhibiting adjustment are effective in preventing adjustment of
parameters on in-use engines to settings outside your intended
physically adjustable ranges.
(t) Provide the information to read, record, and interpret all the
information broadcast by an engine's onboard computers and electronic
control units.

[[Page 39230]]

State that, upon request, you will give us any hardware, software, or
tools we would need to do this. If you broadcast a surrogate parameter
for torque values, you must provide us what we need to convert these
into torque units. You may reference any appropriate publicly released
standards that define conventions for these messages and parameters.
Format your information consistent with publicly released standards.
(u) Confirm that your emission-related installation instructions
specify how to ensure that sampling of exhaust emissions will be
possible after engines are installed in equipment and placed in
service. If this cannot be done by simply adding a 20-centimeter
extension to the exhaust pipe, show how to sample exhaust emissions in
a way that prevents diluting the exhaust sample with ambient air.
(v) State whether your certification is limited for certain
engines. If this is the case, describe how you will prevent use of
these engines in applications for which they are not certified. This
applies for engines such as the following:
(1) Constant-speed engines.
(2) Engines used for transportation refrigeration units that you
certify under the provisions of Sec. 1039.645.
(3) Hand-startable engines certified under the provisions of Sec.
1039.101(c).
(4) Engines above 560 kW that are not certified to emission
standards for generator-set engines.
(w) Unconditionally certify that all the engines in the engine
family comply with the requirements of this part, other referenced
parts of the CFR, and the Clean Air Act.
(x) Include estimates of U.S.-directed production volumes.
(y) Include the information required by other subparts of this
part. For example, include the information required by Sec. 1039.725
if you participate in the ABT program.
(z) Include other applicable information, such as information
specified in this part or 40 CFR part 1068 related to requests for
exemptions.

Sec. 1039.210 May I get preliminary approval before I complete my
application?

If you send us information before you finish the application, we
will review it and make any appropriate determinations, especially for
questions related to engine family definitions, auxiliary emission-
control devices, deterioration factors, testing for service
accumulation, maintenance, and NTE deficiencies and carve-outs.
Decisions made under this section are considered to be preliminary
approval, subject to final review and approval. If you request
preliminary approval related to the upcoming model year or the model
year after that, we will make best-efforts to make the appropriate
determinations as soon as practicable. We will generally not provide
preliminary approval related to a future model year more than two years
ahead of time.

Sec. 1039.220 How do I amend the maintenance instructions in my
application?

You may amend your emission-related maintenance instructions after
you submit your application for certification, as long as the amended
instructions remain consistent with the provisions of Sec. 1039.125.
You must send the Designated Compliance Officer a request to amend your
application for certification for an engine family if you want to
change the emission-related maintenance instructions in a way that
could affect emissions. In your request, describe the proposed changes
to the maintenance instructions. We will disapprove your request if we
determine that the amended instructions are inconsistent with
maintenance you performed on emission-data engines.
(a) If you are decreasing the specified maintenance, you may
distribute the new maintenance instructions to your customers 30 days
after we receive your request, unless we disapprove your request. We
may approve a shorter time or waive this requirement.
(b) If your requested change would not decrease the specified
maintenance, you may distribute the new maintenance instructions
anytime after you send your request. For example, this paragraph (b)
would cover adding instructions to increase the frequency of a
maintenance step for engines in severe-duty applications.
(c) You need not request approval if you are making only minor
corrections (such as correcting typographical mistakes), clarifying
your maintenance instructions, or changing instructions for maintenance
unrelated to emission control.

Sec. 1039.225 How do I amend my application for certification to
include new or modified engines?

Before we issue you a certificate of conformity, you may amend your
application to include new or modified engine configurations, subject
to the provisions of this section. After we have issued your
certificate of conformity, you may send us an amended application
requesting that we include new or modified engine configurations within
the scope of the certificate, subject to the provisions of this
section. You must amend your application if any changes occur with
respect to any information included in your application.
(a) You must amend your application before you take either of the
following actions:
(1) Add an engine (that is, an additional engine configuration) to
an engine family. In this case, the engine added must be consistent
with other engines in the engine family with respect to the criteria
listed in Sec. 1039.230.
(2) Change an engine already included in an engine family in a way
that may affect emissions, or change any of the components you
described in your application for certification. This includes
production and design changes that may affect emissions any time during
the engine's lifetime.
(b) To amend your application for certification, send the
Designated Compliance Officer the following information:
(1) Describe in detail the addition or change in the engine model
or configuration you intend to make.
(2) Include engineering evaluations or data showing that the
amended engine family complies with all applicable requirements. You
may do this by showing that the original emission-data engine is still
appropriate with respect to showing compliance of the amended family
with all applicable requirements.
(3) If the original emission-data engine for the engine family is
not appropriate to show compliance for the new or modified nonroad
engine, include new test data showing that the new or modified nonroad
engine meets the requirements of this part.
(c) We may ask for more test data or engineering evaluations. You
must give us these within 30 days after we request them.
(d) For engine families already covered by a certificate of
conformity, we will determine whether the existing certificate of
conformity covers your new or modified nonroad engine. You may ask for
a hearing if we deny your request (see Sec. 1039.820).
(e) For engine families already covered by a certificate of
conformity, you may start producing the new or modified nonroad engine
anytime after you send us your amended application, before we make a
decision under paragraph (d) of this section. However, if we determine
that the affected engines do not meet applicable requirements, we will
notify you to cease production of the engines and may require you to
recall the engines at no expense to the owner. Choosing to produce
engines under this paragraph (e) is deemed to be

[[Page 39231]]

consent to recall all engines that we determine do not meet applicable
emission standards or other requirements and to remedy the
nonconformity at no expense to the owner. If you do not provide
information required under paragraph (c) of this section within 30
days, you must stop producing the new or modified nonroad engines.

Sec. 1039.230 How do I select engine families?

(a) Divide your product line into families of engines that are
expected to have similar emission characteristics throughout the useful
life. Your engine family is limited to a single model year.
(b) Group engines in the same engine family if they are the same in
all the following aspects:
(1) The combustion cycle and fuel.
(2) The cooling system (water-cooled vs. air-cooled).
(3) Method of air aspiration.
(4) Method of exhaust aftertreatment (for example, catalytic
converter or particulate trap).
(5) Combustion chamber design.
(6) Bore and stroke.
(7) Number of cylinders (for engines with aftertreatment devices
only).
(8) Cylinder arrangement (for engines with aftertreatment devices
only).
(9) Method of control for engine operation other than governing
(i.e., mechanical or electronic).
(10) Power category.
(11) Numerical level of the emission standards that apply to the
engine.
(c) You may subdivide a group of engines that is identical under
paragraph (b) of this section into different engine families if you
show the expected emission characteristics are different during the
useful life.
(d) You may group engines that are not identical with respect to
the things listed in paragraph (b) of this section in the same engine
family if you show that their emission characteristics during the
useful life will be similar.
(e) If you combine engines from different power categories into a
single engine family under paragraph (d) of this section, you must
certify the engine family to the more stringent set of standards from
the two power categories in that model year.

Sec. 1039.235 What emission testing must I perform for my application
for a certificate of conformity?

This section describes the emission testing you must perform to
show compliance with the emission standards in Sec. 1039.101(a) and
(b) or Sec. 1039.102(a) and (b). See Sec. 1039.205(p) regarding
emission testing related to the NTE standards. See Sec. 1039.240,
Sec. 1039.245, and 40 CFR part 1065, subpart E, regarding service
accumulation before emission testing.
(a) Test your emission-data engines using the procedures and
equipment specified in subpart F of this part.
(b) Select an emission-data engine from each engine family for
testing. Select the engine configuration with the highest volume of
fuel injected per cylinder per combustion cycle at the point of maximum
torque--unless good engineering judgment indicates that a different
engine configuration is more likely to exceed (or have emissions nearer
to) an applicable emission standard or FEL. If two or more engines have
the same fueling rate at maximum torque, select the one with the
highest fueling rate at rated speed. In making this selection, consider
all factors expected to affect emission-control performance and
compliance with the standards, including emission levels of all exhaust
constituents, especially NO_X and PM.
(c) We may measure emissions from any of your test engines or other
engines from the engine family, as follows:
(1) We may decide to do the testing at your plant or any other
facility. If we do this, you must deliver the test engine to a test
facility we designate. The test engine you provide must include
appropriate manifolds, aftertreatment devices, electronic control
units, and other emission-related components not normally attached
directly to the engine block. If we do the testing at your plant, you
must schedule it as soon as possible and make available the
instruments, personnel, and equipment we need.
(2) If we measure emissions on one of your test engines, the
results of that testing become the official emission results for the
engine. Unless we later invalidate these data, we may decide not to
consider your data in determining if your engine family meets
applicable requirements.
(3) Before we test one of your engines, we may set its adjustable
parameters to any point within the physically adjustable ranges (see
Sec. 1039.115(e)).
(4) Before we test one of your engines, we may calibrate it within
normal production tolerances for anything we do not consider an
adjustable parameter.
(d) You may ask to use emission data from a previous model year
instead of doing new tests, but only if all the following are true:
(1) The engine family from the previous model year differs from the
current engine family only with respect to model year.
(2) The emission-data engine from the previous model year remains
the appropriate emission-data engine under paragraph (b) of this
section.
(3) The data show that the emission-data engine would meet all the
requirements that apply to the engine family covered by the application
for certification.
(e) We may require you to test a second engine of the same or
different configuration in addition to the engine tested under
paragraph (b) of this section.
(f) If you use an alternate test procedure under 40 CFR 1065.10 and
later testing shows that such testing does not produce results that are
equivalent to the procedures specified in subpart F of this part, we
may reject data you generated using the alternate procedure.

Sec. 1039.240 How do I demonstrate that my engine family complies
with exhaust emission standards?

(a) For purposes of certification, your engine family is considered
in compliance with the applicable numerical emission standards in Sec.
1039.101(a) and (b) or in Sec. 1039.102(a) and (b) if all emission-
data engines representing that family have test results showing
deteriorated emission levels at or below these standards. (Note: if you
participate in the ABT program in subpart H of this part, your FELs are
considered to be the applicable emission standards with which you must
comply.)
(b) Your engine family is deemed not to comply if any emission-data
engine representing that family has test results showing a deteriorated
emission level above an applicable FEL or emission standard from Sec.
1039.101 for any pollutant.
(c) To compare emission levels from the emission-data engine with
the applicable emission standards, apply deterioration factors to the
measured emission levels for each pollutant. Section 1039.245 specifies
how to test your engine to develop deterioration factors that represent
the deterioration expected in emissions over your engines' full useful
life. Your deterioration factors must take into account any available
data from in-use testing with similar engines. Small-volume engine
manufacturers may use assigned deterioration factors that we establish.
Apply deterioration factors as follows:
(1) Additive deterioration factor for exhaust emissions. Except as
specified in paragraph (c)(2) of this section, use an additive
deterioration factor for exhaust emissions. An additive deterioration
factor for a pollutant is the difference between exhaust emissions at

[[Page 39232]]

the end of the useful life and exhaust emissions at the low-hour test
point. In these cases, adjust the official emission results for each
tested engine at the selected test point by adding the factor to the
measured emissions. If the factor is less than zero, use zero. Additive
deterioration factors must be specified to one more decimal place than
the applicable standard.
(2) Multiplicative deterioration factor for exhaust emissions. Use
a multiplicative deterioration factor if good engineering judgment
calls for the deterioration factor for a pollutant to be the ratio of
exhaust emissions at the end of the useful life to exhaust emissions at
the low-hour test point. For example, if you use aftertreatment
technology that controls emissions of a pollutant proportionally to
engine-out emissions, it is often appropriate to use a multiplicative
deterioration factor. Adjust the official emission results for each
tested engine at the selected test point by multiplying the measured
emissions by the deterioration factor. If the factor is less than one,
use one. A multiplicative deterioration factor may not be appropriate
in cases where testing variability is significantly greater than
engine-to-engine variability. Multiplicative deterioration factors must
be specified to one more significant figure than the applicable
standard.
(3) Deterioration factor for smoke. Deterioration factors for smoke
are always additive, as described in paragraph (c)(1) of this section.
(4) Deterioration factor for crankcase emissions. If your engine
vents crankcase emissions to the exhaust or to the atmosphere, you must
account for crankcase emission deterioration, using good engineering
judgment. You may use separate deterioration factors for crankcase
emissions of each pollutant (either multiplicative or additive) or
include the effects in combined deterioration factors that include
exhaust and crankcase emissions together for each pollutant.
(d) Collect emission data using measurements to one more decimal
place than the applicable standard. Apply the deterioration factor to
the official emission result, as described in paragraph (c) of this
section, then round the adjusted figure to the same number of decimal
places as the emission standard. Compare the rounded emission levels to
the emission standard for each emission-data engine. In the case of
NO_X+NMHC standards, apply the deterioration factor to each
pollutant and then add the results before rounding.
(e) For engines subject to NMHC standards, you may base compliance
on total hydrocarbon (THC) emissions. Indicate in your application for
certification if you are using this option. If you do, measure THC
emissions and calculate NMHC emissions as 98 percent of THC emissions,
as shown in the following equation:

NMHC = (0.98) x (THC).

Sec. 1039.245 How do I determine deterioration factors from exhaust
durability testing?

Establish deterioration factors to determine whether your engines
will meet emission standards for each pollutant throughout the useful
life, as described in Sec. Sec. 1039.101 and 1039.240. This section
describes how to determine deterioration factors, either with an
engineering analysis, with pre-existing test data, or with new emission
measurements. If you are required to perform durability testing, see
Sec. 1039.125 for limitations on the maintenance that you may perform
on your emission-data engine.
(a) You may ask us to approve deterioration factors for an engine
family with established technology based on engineering analysis
instead of testing. Engines certified to a NO_X+NMHC standard
or FEL greater than the Tier 3 NO_X+NMHC standard described
in 40 CFR 89.112 are considered to rely on established technology for
gaseous emission control, except that this does not include any engines
that use exhaust-gas recirculation or aftertreatment. In most cases,
technologies used to meet the Tier 1 and Tier 2 emission standards
would be considered to be established technology.
(b) You may ask us to approve deterioration factors for an engine
family based on emission measurements from similar highway or nonroad
engines if you have already given us these data for certifying the
other engines in the same or earlier model years. Use good engineering
judgment to decide whether the two engines are similar. We will approve
your request if you show us that the emission measurements from other
engines reasonably represent in-use deterioration for the engine family
for which you have not yet determined deterioration factors.
(c) If you are unable to determine deterioration factors for an
engine family under paragraph (a) or (b) of this section, select
engines, subsystems, or components for testing. Determine deterioration
factors based on service accumulation and related testing to represent
the deterioration expected from in-use engines over the full useful
life. You must measure emissions from the emission-data engine at least
three times with evenly spaced intervals of service accumulation. You
may use extrapolation to determine deterioration factors once you have
established a trend of changing emissions with age for each pollutant.
You may use an engine installed in nonroad equipment to accumulate
service hours instead of running the engine only in the laboratory. You
may perform maintenance on emission-data engines as described in Sec.
1039.125 and 40 CFR part 1065, subpart E. Use good engineering judgment
for all aspects of the effort to establish deterioration factors under
this paragraph (c).
(d) Include the following information in your application for
certification:
(1) If you use test data from a different engine family, explain
why this is appropriate and include all the emission measurements on
which you base the deterioration factor.
(2) If you determine your deterioration factors based on
engineering analysis, explain why this is appropriate and include a
statement that all data, analyses, evaluations, and other information
you used are available for our review upon request.
(3) If you do testing to determine deterioration factors, describe
the form and extent of service accumulation, including a rationale for
selecting the service-accumulation period and the method you use to
accumulate hours.

Sec. 1039.250 What records must I keep and what reports must I send
to EPA?

(a) Within 30 days after the end of the model year, send the
Designated Compliance Officer a report describing the following
information about engines you produced during the model year:
(1) Report the total number of engines you produced in each engine
family by maximum engine power, total displacement, and the type of
fuel system.
(2) If you produced exempted engines under the provisions of Sec.
1039.625, report the number of exempted engines you produced for each
engine model and identify the buyer or shipping destination for each
exempted engine.
(b) Organize and maintain the following records:
(1) A copy of all applications and any summary information you send
us.
(2) Any of the information we specify in Sec. 1039.205 that you
were not required to include in your application.
(3) A detailed history of each emission-data engine. For each
engine, describe all of the following:
(i) The emission-data engine's construction, including its origin
and buildup, steps you took to ensure that

[[Page 39233]]

it represents production engines, any components you built specially
for it, and all the components you include in your application for
certification.
(ii) How you accumulated engine operating hours (service
accumulation), including the dates and the number of hours accumulated.
(iii) All maintenance, including modifications, parts changes, and
other service, and the dates and reasons for the maintenance.
(iv) All your emission tests, including documentation on routine
and standard tests, as specified in part 40 CFR part 1065, and the date
and purpose of each test.
(v) All tests to diagnose engine or emission-control performance,
giving the date and time of each and the reasons for the test.
(vi) Any other significant events.
(4) Production figures for each engine family divided by assembly
plant.
(5) Keep a list of engine identification numbers for all the
engines you produce under each certificate of conformity.
(c) Keep data from routine emission tests (such as test cell
temperatures and relative humidity readings) for one year after we
issue the associated certificate of conformity. Keep all other
information specified in paragraph (a) of this section for eight years
after we issue your certificate.
(d) Store these records in any format and on any media, as long as
you can promptly send us organized, written records in English if we
ask for them. You must keep these records readily available. We may
review them at any time.
(e) Send us copies of any engine maintenance instructions or
explanations if we ask for them.

Sec. 1039.255 What decisions may EPA make regarding my certificate of
conformity?

(a) If we determine your application is complete and shows that the
engine family meets all the requirements of this part and the Act, we
will issue a certificate of conformity for your engine family for that
model year. We may make the approval subject to additional conditions.
(b) We may deny your application for certification if we determine
that your engine family fails to comply with emission standards or
other requirements of this part or the Act. Our decision may be based
on a review of all information available to us. If we deny your
application, we will explain why in writing.
(c) In addition, we may deny your application or suspend or revoke
your certificate if you do any of the following:
(1) Refuse to comply with any testing or reporting requirements.
(2) Submit false or incomplete information (paragraph (e) of this
section applies if this is fraudulent).
(3) Render inaccurate any test data.
(4) Deny us from completing authorized activities despite our
presenting a warrant or court order (see 40 CFR 1068.20). This includes
a failure to provide reasonable assistance.
(5) Produce engines for importation into the United States at a
location where local law prohibits us from carrying out authorized
activities.
(6) Fail to supply requested information or amend your application
to include all engines being produced.
(7) Take any action that otherwise circumvents the intent of the
Act or this part.
(d) We may void your certificate if you do not keep the records we
require or do not give us information when we ask for it.
(e) We may void your certificate if we find that you intentionally
submitted false or incomplete information.
(f) If we deny your application or suspend, revoke, or void your
certificate, you may ask for a hearing (see Sec. 1039.820).

Sec. 1039.260 What provisions apply to engines that are conditionally
exempted from certification?

As specified elsewhere in this part or in 40 CFR part 1068, you may
in some cases introduce engines into commerce that are exempt from the
requirement to certify engines to the otherwise applicable standards.
If we specify alternate standards as a condition of the exemption, all
the following provisions apply:
(a) Your engines must meet the alternate standards we specify in
the exemption section, and all other requirements applicable to engines
that are subject to such standards.
(b) You need not apply for and receive a certificate for the exempt
engines. However, you must comply with all the requirements and
obligations that would apply to the engines if you had received a
certificate of conformity for them, unless we specifically waive
certain requirements.
(c) You must have emission data from testing engines using the
appropriate procedures that demonstrate compliance with the alternate
standards, unless the engines are identical in all material respects to
engines that you have previously certified to standards that are the
same as, or more stringent than, the alternate standards.
(d) Unless we specify otherwise elsewhere in this part or in 40 CFR
part 1068, you must meet the labeling requirements in Sec. 1039.135,
with the following exceptions:
(1) Instead of the engine family designation specified in Sec.
1039.135(c)(3), use a modified designation to identify the group of
engines that would otherwise be included in the same engine family.
(2) Instead of the compliance statement in Sec. 1039.135(c)(12),
add the following statement: ``THIS ENGINE MEETS U.S. EPA EMISSION
STANDARDS UNDER 40 CFR 1039.260.''.
(e) You may not generate ABT credits with engines meeting
requirements under the provisions of this section.
(f) Keep records to show that you meet the alternate standards, as
follows:
(1) If your exempted engines are identical to previously certified
engines, keep your most recent application for certification for the
certified engine family.
(2) If you previously certified a similar engine family, but have
modified the exempted engine in a way that changes it from its
previously certified configuration, keep your most recent application
for certification for the certified engine family, a description of the
relevant changes, and any test data or engineering evaluations that
support your conclusions.
(3) If you have not previously certified a similar engine family,
keep all the records we specify for the application for certification
and the additional records we specify in Sec. 1039.250(b)(3).
(g) We may require you to send us an annual report of the engines
you produce under this section.

Subpart D--[Reserved]

Subpart E--In-Use Testing

Sec. 1039.401 General provisions.

We may perform in-use testing of any engine subject to the
standards of this part. However, we will limit recall testing to the
first 75 percent of each engine's useful life as specified in Sec.
1039.101(g).

Subpart F--Test Procedures

Sec. 1039.501 How do I run a valid emission test?

(a) Use the equipment and procedures for compression-ignition
engines in 40 CFR part 1065 to determine whether engines meet the duty-
cycle emission standards in Sec. 1039.101(a) and (b). Measure the
emissions of all the pollutants we regulate in Sec. 1039.101 as
specified in 40 CFR part 1065. Note that we do not allow partial-flow
sampling for measuring PM emissions on a

[[Page 39234]]

laboratory dynamometer for transient testing. Use the applicable duty
cycles specified in Sec. Sec. 1039.505 and 1039.510.
(b) Section 1039.515 describes the supplemental procedures for
evaluating whether engines meet the not-to-exceed emission standards in
Sec. 1039.101(e).
(c) Measure smoke using the procedures in 40 CFR part 86, subpart
I, for evaluating whether engines meet the smoke standards in Sec.
1039.105, except that you may test two-cylinder engines with an exhaust
muffler like those installed on in-use engines.
(d) Use the fuels specified in Sec. 1039.104(e) and 40 CFR part
1065 to perform valid tests.
(1) For service accumulation, use the test fuel or any commercially
available fuel that is representative of the fuel that in-use engines
will use.
(2) For diesel-fueled engines, use the appropriate diesel fuel
specified in 40 CFR part 1065 for emission testing. Unless we specify
otherwise, the appropriate diesel test fuel is the ultra low-sulfur
diesel fuel. If we allow you to use a test fuel with higher sulfur
levels, identify the test fuel in your application for certification
and ensure that the emission control information label is consistent
with your selection of the test fuel (see Sec. 1039.135(c)(9)). For
example, do not test with ultra low-sulfur diesel fuel if you intend to
label your engines to allow use of diesel fuel with sulfur
concentrations up to 500 ppm.
(e) You may use special or alternate procedures to the extent we
allow them under 40 CFR 1065.10.
(f) This subpart is addressed to you as a manufacturer, but it
applies equally to anyone who does testing for you, and to us when we
perform testing to determine if your engines meet emission standards.

Sec. 1039.505 How do I test engines using steady-state duty cycles,
including ramped-modal testing?

This section describes how to test engines under steady-state
conditions. In some cases, we allow you to choose the appropriate
steady-state duty cycle for an engine. In these cases, you must use the
duty cycle you select in your application for certification for all
testing you perform for that engine family. If we test your engines to
confirm that they meet emission standards, we will use the duty cycles
you select for your own testing. We may also perform other testing as
allowed by the Clean Air Act.
(a) You may perform steady-state testing with either discrete-mode
or ramped-modal cycles, as follows:
(1) For discrete-mode testing, sample emissions separately for each
mode, then calculate an average emission level for the whole cycle
using the weighting factors specified for each mode. Calculate cycle
statistics for the sequence of modes and compare with the specified
values in 40 CFR part 1065 to confirm that the test is valid. Operate
the engine and sampling system as follows:
(i) Engines with NOX aftertreatment. For engines that depend on
aftertreatment to meet the NO_X emission standard, operate
the engine for 5-6 minutes, then sample emissions for 1-3 minutes in
each mode. You may extend the sampling time to improve measurement
accuracy of PM emissions, using good engineering judgment. If you have
a longer sampling time for PM emissions, calculate and validate cycle
statistics separately for the gaseous and PM sampling periods.
(ii) Engines without NOX aftertreatment. For other engines, operate
the engine for at least 5 minutes, then sample emissions for at least 1
minute in each mode. Calculate cycle statistics for the sequence of
modes and compare with the specified values in 40 CFR part 1065 to
confirm that the test is valid.
(2) For ramped-modal testing, start sampling at the beginning of
the first mode and continue sampling until the end of the last mode.
Calculate emissions and cycle statistics the same as for transient
testing.
(b) Measure emissions by testing the engine on a dynamometer with
one of the following duty cycles to determine whether it meets the
steady-state emission standards in Sec. 1039.101(b):
(1) Use the 5-mode duty cycle or the corresponding ramped-modal
cycle described in Appendix II of this part for constant-speed engines.
Note that these cycles do not apply to all engines used in constant-
speed applications, as described in Sec. 1039.801.
(2) Use the 6-mode duty cycle or the corresponding ramped-modal
cycle described in Appendix III of this part for variable-speed engines
below 19 kW. You may instead use the 8-mode duty cycle or the
corresponding ramped-modal cycle described in Appendix IV of this part
if some engines from your engine family will be used in applications
that do not involve governing to maintain engine operation around rated
speed.
(3) Use the 8-mode duty cycle or the corresponding ramped-modal
cycle described in Appendix IV of this part for variable-speed engines
at or above 19 kW.
(c) During idle mode, operate the engine with the following
parameters:
(1) Hold the speed within your specifications.
(2) Set the engine to operate at its minimum fueling rate.
(3) Keep engine torque under 5 percent of maximum test torque.
(d) For full-load operating modes, operate the engine at its
maximum fueling rate. However, for constant-speed engines whose design
prevents full-load operation for extended periods, you may ask for
approval under 40 CFR 1065.10(c) to replace full-load operation with
the maximum load for which the engine is designed to operate for
extended periods.
(e) See 40 CFR part 1065 for detailed specifications of tolerances
and calculations.
(f) For those cases where transient testing is not necessary,
perform the steady-state test according to this section after an
appropriate warm-up period, consistent with 40 CFR part 1065, subpart F.

Sec. 1039.510 Which duty cycles do I use for transient testing?

(a) Measure emissions by testing the engine on a dynamometer with
one of the following transient duty cycles to determine whether it
meets the transient emission standards in Sec. 1039.101(a):
(1) For variable-speed engines, use the transient duty cycle
described in Appendix VI of this part.
(2) [Reserved]
(b) The transient test sequence consists of an initial run through
the transient duty cycle from a cold start, 20 minutes with no engine
operation, then a final run through the same transient duty cycle.
Start sampling emissions immediately after you start the engine.
Calculate the official transient emission result from the following
equation:

Official transient emission result = 0.05 x cold-start emission rate
+ 0.95 x hot-start emission rate.

(c) Cool the engine down between tests as described in 40 CFR
86.1335-90.
(d) For validating cycle statistics, you may delete from your
regression analysis speed, torque, and power points for the first 23
seconds and the last 25 seconds of the transient duty cycle.

Sec. 1039.515 What are the test procedures related to not-to-exceed
standards?

(a) General provisions. The provisions in 40 CFR 86.1370-2007 apply
for determining whether an engine meets the not-to-exceed emission
standards in Sec. 1039.101(e). Interpret references to vehicles and
vehicle operation to mean equipment and equipment operation.

[[Page 39235]]

(b) Special PM zone. For engines certified to a PM standard or FEL
above 0.07 g/kW-hr, a modified NTE control area applies for PM
emissions only. The speeds and loads to be excluded are determined
based on speeds B and C, determined according to the provisions of 40
CFR 86.1360-2007(c). One of the following provisions applies:
(1) If the C speed is below 2400 rpm, exclude the speed and load
points to the right of or below the line formed by connecting the
following two points on a plot of speed-vs.-power:
(i) 30% of maximum power at the B speed; however, use the power
value corresponding to the engine operation at 30% of maximum torque at
the B speed if this is greater than 30% of maximum power at the B
speed.
(ii) 70% of maximum power at 100% speed.
(2) If the C speed is at or above 2400 rpm, exclude the speed and
load points to the right of the line formed by connecting the two
points in paragraphs (b)(2)(i) and (ii) of this section (the 30% and
50% torque/power points) and below the line formed by connecting the
two points in paragraphs (b)(2)(ii) and (iii) of this section (the 50%
and 70% torque/power points). The 30%, 50%, and 70% torque/power points
are defined as follows:
(i) 30% of maximum power at the B speed; however, use the power
value corresponding to the engine operation at 30% of maximum torque at
the B speed if this is greater than 30% of maximum power at the B
speed.
(ii) 50% of maximum power at 2400 rpm.
(iii) 70% of maximum power at 100% speed.

Sec. 1039.520 What testing must I perform to establish deterioration
factors?

Sections 1039.240 and 1039.245 describe the method for testing that
must be performed to establish deterioration factors for an engine
family.

Sec. 1039.525 How do I adjust emission levels to account for
infrequently regenerating aftertreatment devices?

This section describes how to adjust emission results from engines
using aftertreatment technology with infrequent regeneration events.
For this section, ``regeneration'' means an intended event during which
emission levels change while the system restores aftertreatment
performance. For example, exhaust gas temperatures may increase
temporarily to remove sulfur from adsorbers or to oxidize accumulated
particulate matter in a trap. For this section, ``infrequent'' refers
to regeneration events that are expected to occur on average less than
once over the applicable transient duty cycle or ramped-modal cycle, or
on average less than once per typical mode in a discrete-mode test.
(a) Developing adjustment factors. Develop an upward adjustment
factor and a downward adjustment factor for each pollutant based on
measured emission data and observed regeneration frequency. Adjustment
factors should generally apply to an entire engine family, but you may
develop separate adjustment factors for different engine configurations
within an engine family. If you use adjustment factors for
certification, you must identify the frequency factor, F, from
paragraph (b) of this section in your application for certification and
use the adjustment factors in all testing for that engine family. You
may use carryover or carry-across data to establish adjustment factors
for an engine family, as described in Sec. 1039.235(d), consistent
with good engineering judgment. All adjustment factors for regeneration
are additive. Determine adjustment factors separately for different
test segments. For example, determine separate adjustment factors for
hot-start and cold-start test segments and for different modes of a
discrete-mode steady-state test. You may use either of the following
different approaches for engines that use aftertreatment with
infrequent regeneration events:
(1) You may disregard this section if regeneration does not
significantly affect emission levels for an engine family (or
configuration) or if it is not practical to identify when regeneration
occurs. If you do not use adjustment factors under this section, your
engines must meet emission standards for all testing, without regard to
regeneration.
(2) If your engines use aftertreatment technology with extremely
infrequent regeneration and you are unable to apply the provisions of
this section, you may ask us to approve an alternate methodology to
account for regeneration events.
(b) Calculating average adjustment factors. Calculate the average
adjustment factor (EF_A) based on the following equation:

EF_A = (F)(EF_H) + (1-F)(EF_L)

Where:
F = the frequency of the regeneration event in terms of the fraction
of tests during which the regeneration occurs.
EF_H = measured emissions from a test segment in which the
regeneration occurs.
EF_L = measured emissions from a test segment in which the
regeneration does not occur.

(c) Applying adjustment factors. Apply adjustment factors based on
whether regeneration occurs during the test run. You must be able to
identify regeneration in a way that is readily apparent during all
testing.
(1) If regeneration does not occur during a test segment, add an
upward adjustment factor to the measured emission rate. Determine the
upward adjustment factor (UAF) using the following equation:

UAF = EF_A - EF_L

(2) If regeneration occurs or starts to occur during a test
segment, subtract a downward adjustment factor from the measured
emission rate. Determine the downward adjustment factor (DAF) using the
following equation:

DAF = EF_H - EF_A

(d) Sample calculation. If EF_L is 0.10 g/kW-hr,
EF_H is 0.50 g/kW-hr, and F is 0.1 (the regeneration occurs
once for each ten tests), then:

EF_A = (0.1)(0.5 g/kW-hr) + (1.0 - 0.1)(0.1 g/kW-hr) =
0.14 g/kW-hr.
UAF = 0.14 g/kW-hr - 0.10 g/kW-hr = 0.04 g/kW-hr.
DAF = 0.50 g/kW-hr - 0.14 g/kW-hr = 0.36 g/kW-hr.

Subpart G--Special Compliance Provisions

Sec. 1039.601 What compliance provisions apply to these engines?

Engine and equipment manufacturers, as well as owners, operators,
and rebuilders of engines subject to the requirements of this part, and
all other persons, must observe the provisions of this part, the
requirements and prohibitions in 40 CFR part 1068, and the provisions
of the Act.

Sec. 1039.605 What provisions apply to engines already certified
under the motor-vehicle program?

(a) General provisions. If you are an engine manufacturer, this
section allows you to introduce new nonroad engines into commerce if
they are already certified to the requirements that apply to
compression-ignition engines under 40 CFR parts 85 and 86. If you
comply with all the provisions of this section, we consider the
certificate issued under 40 CFR part 86 for each engine to also be a
valid certificate of conformity under this part 1039 for its model
year, without a separate application for certification under the
requirements of this part 1039. See Sec. 1039.610 for similar
provisions that apply to engines certified to chassis-based standards
for motor vehicles.
(b) Equipment-manufacturer provisions. If you are not an engine

[[Page 39236]]

manufacturer, you may produce nonroad equipment using motor-vehicle
engines under this section as long as the engine has been properly
labeled as specified in paragraph (d)(5) of this section and you do not
make any of the changes described in paragraph (d)(2) of this section.
You must also add the fuel-inlet label we specify in Sec. 1039.135(e).
If you modify the motor-vehicle engine in any of the ways described in
paragraph (d)(2) of this section, we will consider you a manufacturer
of a new nonroad engine. Such engine modifications prevent you from
using the provisions of this section.
(c) Liability. Engines for which you meet the requirements of this
section are exempt from all the requirements and prohibitions of this
part, except for those specified in this section. Engines exempted
under this section must meet all the applicable requirements from 40
CFR parts 85 and 86. This paragraph (c) applies to engine
manufacturers, equipment manufacturers who use these engines, and all
other persons as if these engines were used in a motor vehicle. The
prohibited acts of Sec. 1068.101(a)(1) apply to these new engines and
equipment; however, we consider the certificate issued under 40 CFR
part 86 for each engine to also be a valid certificate of conformity
under this part 1039 for its model year. If we make a determination
that these engines do not conform to the regulations during their
useful life, we may require you to recall them under 40 CFR part 85 or
40 CFR 1068.505.
(d) Specific requirements. If you are an engine manufacturer and
meet all the following criteria and requirements regarding your new
nonroad engine, the engine is eligible for an exemption under this
section:
(1) Your engine must be covered by a valid certificate of
conformity issued under 40 CFR part 86.
(2) You must not make any changes to the certified engine that
could reasonably be expected to increase its exhaust emissions for any
pollutant, or its evaporative emissions if it is subject to
evaporative-emission standards. For example, if you make any of the
following changes to one of these engines, you do not qualify for this
exemption:
(i) Change any fuel system parameters from the certified
configuration.
(ii) Change, remove, or fail to properly install any other
component, element of design, or calibration specified in the engine
manufacturer's application for certification. This includes
aftertreatment devices and all related components.
(iii) Modify or design the engine cooling system so that
temperatures or heat rejection rates are outside the original engine
manufacturer's specified ranges.
(3) You must show that fewer than 50 percent of the engine model's
total sales for the model year, from all companies, are used in nonroad
applications, as follows:
(i) If you are the original manufacturer of the engine, base this
showing on your sales information.
(ii) In all other cases, you must get the original manufacturer of
the engine to confirm this based on its sales information.
(4) You must ensure that the engine has the label we require under
40 CFR part 86.
(5) You must add a permanent supplemental label to the engine in a
position where it will remain clearly visible after installation in the
equipment. In the supplemental label, do the following:
(i) Include the heading: ``NONROAD ENGINE EMISSION CONTROL
INFORMATION''.
(ii) Include your full corporate name and trademark. You may
instead include the full corporate name and trademark of another
company you choose to designate.
(iii) State: ``THIS ENGINE WAS ADAPTED FOR NONROAD USE WITHOUT
AFFECTING ITS EMISSION CONTROLS. THE EMISSION-CONTROL SYSTEM DEPENDS ON
THE USE OF FUEL MEETING SPECIFICATIONS THAT APPLY FOR MOTOR-VEHICLE
APPLICATIONS. OPERATING THE ENGINE ON OTHER FUELS MAY BE A VIOLATION OF
FEDERAL LAW.''.
(iv) State the date you finished modifying the engine (month and
year), if applicable.
(6) The original and supplemental labels must be readily visible
after the engine is installed in the equipment or, if the equipment
obscures the engine's emission control information label, the equipment
manufacturer must attach duplicate labels, as described in 40 CFR
1068.105.
(7) You must make sure that nonroad equipment produced under this
section will have the fueling label we specify in Sec.
1039.135(c)(9)(i).
(8) Send the Designated Compliance Officer a signed letter by the
end of each calendar year (or less often if we tell you) with all the
following information:
(i) Identify your full corporate name, address, and telephone
number.
(ii) List the engine models you expect to produce under this
exemption in the coming year.
(iii) State: ``We produce each listed engine model for nonroad
application without making any changes that could increase its
certified emission levels, as described in 40 CFR 1039.605.''.
(e) Failure to comply. If your engines do not meet the criteria
listed in paragraph (d) of this section, they will be subject to the
standards, requirements, and prohibitions of this part 1039 and the
certificate issued under 40 CFR part 86 will not be deemed to also be a
certificate issued under this part 1039. Introducing these engines into
commerce without a valid exemption or certificate of conformity under
this part violates the prohibitions in 40 CFR 1068.101(a)(1).
(f) Data submission. We may require you to send us emission test
data on any applicable nonroad duty cycles.

Sec. 1039.610 What provisions apply to vehicles already certified
under the motor-vehicle program?

(a) General provisions. If you are a motor-vehicle manufacturer,
this section allows you to introduce new nonroad engines or equipment
into commerce if the vehicle is already certified to the requirements
that apply under 40 CFR parts 85 and 86. If you comply with all of the
provisions of this section, we consider the certificate issued under 40
CFR part 86 for each motor vehicle to also be a valid certificate of
conformity for the engine under this part 1039 for its model year,
without a separate application for certification under the requirements
of this part 1039. See Sec. 1039.605 for similar provisions that apply
to motor-vehicle engines produced for nonroad equipment.
(b) Equipment-manufacturer provisions. If you are not an engine
manufacturer, you may produce nonroad equipment from motor vehicles
under this section as long as the equipment has the labels specified in
paragraph (d)(5) of this section and you do not make any of the changes
described in paragraph (d)(2) of this section. You must also add the
fuel-inlet label we specify in Sec. 1039.135(e). If you modify the
motor vehicle or its engine in any of the ways described in paragraph
(d)(2) of this section, we will consider you a manufacturer of a new
nonroad engine. Such modifications prevent you from using the
provisions of this section.
(c) Liability. Engines, vehicles, and equipment for which you meet
the requirements of this section are exempt from all the requirements
and prohibitions of this part, except for those specified in this
section. Engines exempted under this section must meet all the
applicable requirements from 40

[[Page 39237]]

CFR parts 85 and 86. This applies to engine manufacturers, equipment
manufacturers, and all other persons as if the nonroad equipment were
motor vehicles. The prohibited acts of Sec. 1068.101(a)(1) apply to
these new pieces of equipment; however, we consider the certificate
issued under 40 CFR part 86 for each motor vehicle to also be a valid
certificate of conformity for the engine under this part 1039 for its
model year. If we make a determination that these engines, vehicles, or
equipment do not conform to the regulations during their useful life,
we may require you to recall them under 40 CFR part 86 or 40 CFR
1068.505.
(d) Specific requirements. If you are a motor-vehicle manufacturer
and meet all the following criteria and requirements regarding your new
nonroad equipment and its engine, the engine is eligible for an
exemption under this section:
(1) Your equipment must be covered by a valid certificate of
conformity as a motor vehicle issued under 40 CFR part 86.
(2) You must not make any changes to the certified vehicle that we
could reasonably expect to increase its exhaust emissions for any
pollutant, or its evaporative emissions if it is subject to
evaporative-emission standards. For example, if you make any of the
following changes, you do not qualify for this exemption:
(i) Change any fuel system parameters from the certified
configuration.
(ii) Change, remove, or fail to properly install any other
component, element of design, or calibration specified in the vehicle
manufacturer's application for certification. This includes
aftertreatment devices and all related components.
(iii) Modify or design the engine cooling system so that
temperatures or heat rejection rates are outside the original vehicle
manufacturer's specified ranges.
(iv) Add more than 500 pounds to the curb weight of the originally
certified motor vehicle.
(3) You must show that fewer than 50 percent of the total sales as
a motor vehicle or a piece of nonroad equipment, from all companies,
are used in nonroad applications, as follows:
(i) If you are the original manufacturer of the vehicle, base this
showing on your sales information.
(ii) In all other cases, you must get the original manufacturer of
the vehicle to confirm this based on their sales information.
(4) The equipment must have the vehicle emission control
information and fuel labels we require under 40 CFR 86.007-35.
(5) You must add a permanent supplemental label to the equipment in
a position where it will remain clearly visible. In the supplemental
label, do the following:
(i) Include the heading: ``NONROAD ENGINE EMISSION CONTROL
INFORMATION''.
(ii) Include your full corporate name and trademark. You may
instead include the full corporate name and trademark of another
company you choose to designate.
(iii) State: ``THIS VEHICLE WAS ADAPTED FOR NONROAD USE WITHOUT
AFFECTING ITS EMISSION CONTROLS. THE EMISSION-CONTROL SYSTEM DEPENDS ON
THE USE OF FUEL MEETING SPECIFICATIONS THAT APPLY FOR MOTOR-VEHICLE
APPLICATIONS. OPERATING THE ENGINE ON OTHER FUELS MAY BE A VIOLATION OF
FEDERAL LAW.''.
(iv) State the date you finished modifying the vehicle (month and
year), if applicable.
(6) The original and supplemental labels must be readily visible in
the fully assembled equipment.
(7) Send the Designated Compliance Officer a signed letter by the
end of each calendar year (or less often if we tell you) with all the
following information:
(i) Identify your full corporate name, address, and telephone number.
(ii) List the equipment models you expect to produce under this
exemption in the coming year.
(iii) State: ``We produce each listed engine or equipment model for
nonroad application without making any changes that could increase its
certified emission levels, as described in 40 CFR 1039.610.''.
(e) Failure to comply. If your engines, vehicles, or equipment do
not meet the criteria listed in paragraph (d) of this section, the
engines will be subject to the standards, requirements, and
prohibitions of this part 1039, and the certificate issued under 40 CFR
part 86 will not be deemed to also be a certificate issued under this
part 1039. Introducing these engines into commerce without a valid
exemption or certificate of conformity under this part violates the
prohibitions in 40 CFR 1068.101(a)(1).
(f) Data submission. We may require you to send us emission test
data on any applicable nonroad duty cycles.

Sec. 1039.615 What special provisions apply to engines using
noncommercial fuels?

In Sec. 1039.115(e), we generally require that engines meet
emission standards for any adjustment within the full range of any
adjustable parameters. For engines that use noncommercial fuels
significantly different than the specified test fuel of the same type,
you may ask to use the parameter-adjustment provisions of this section
instead of those in Sec. 1039.115(e). Engines certified under this
section must be in a separate engine family.
(a) If we approve your request, the following provisions apply:
(1) You must certify the engine using the test fuel specified in
Sec. 1039.501.
(2) You may produce the engine without limits or stops that keep
the engine adjusted within the certified range.
(3) You must specify in-use adjustments different than the
adjustable settings appropriate for the specified test fuel, consistent
with the provisions of paragraph (b)(1) of this section.
(b) To produce engines under this section, you must do the following:
(1) Specify in-use adjustments needed so the engine's level of
emission control for each regulated pollutant is equivalent to that
from the certified configuration.
(2) Add the following information to the emission control
information label specified in Sec. 1039.135:
(i) Include instructions describing how to adjust the engine to
operate in a way that maintains the effectiveness of the emission-
control system.
(ii) State: ``THIS ENGINE IS CERTIFIED TO OPERATE IN APPLICATIONS
USING NONCOMMERCIAL FUEL. MALADJUSTMENT OF THE ENGINE IS A VIOLATION OF
FEDERAL LAW SUBJECT TO CIVIL PENALTY.''.
(3) Keep records to document the destinations and quantities of
engines produced under this section.

Sec. 1039.620 What are the provisions for exempting engines used
solely for competition?

The provisions of this section apply for new engines built on or
after January 1, 2006.
(a) Equipment manufacturers may use uncertified engines if the
vehicles or equipment in which they are installed will be used solely
for competition.
(b) The definition of nonroad engine in 40 CFR 1068.30 excludes
engines used solely for competition. These engines are not required to
comply with this part 1039 or 40 CFR part 89, but 40 CFR 1068.101
prohibits the use of

[[Page 39238]]

competition engines for noncompetition purposes.
(c) We consider a vehicle or piece of equipment to be one that will
be used solely for competition if it has features that are not easily
removed that would make its use other than in competition unsafe,
impractical, or highly unlikely.
(d) As an engine manufacturer, your engine is exempt without our
prior approval if you have a written request for an exempted engine
from the equipment manufacturer showing the basis for believing that
the equipment will be used solely for competition. You must permanently
label engines exempted under this section to clearly indicate that they
are to be used solely for competition. Failure to properly label an
engine will void the exemption.
(e) We may discontinue an exemption under this section if we find
that engines are not used solely for competition.

Sec. 1039.625 What requirements apply under the program for
equipment-manufacturer flexibility?

The provisions of this section allow equipment manufacturers to
produce equipment with engines that are subject to less stringent
emission standards after the Tier 4 emission standards begin to apply.
To be eligible to use these provisions, you must follow all the
instructions in this section. See 40 CFR 89.102(d) and (e) for
provisions that apply to equipment produced while Tier 1, Tier 2, or
Tier 3 standards apply. See Sec. 1039.626 for requirements that apply
specifically to companies that manufacture equipment outside the United
States and to companies that import such equipment without
manufacturing it. Engines and equipment you produce under this section
are exempt from the prohibitions in 40 CFR 1068.101(a)(1), subject to
the provisions of this section.
(a) General. If you are an equipment manufacturer, you may
introduce into commerce in the United States limited numbers of nonroad
equipment with engines exempted under this section. You may use the
exemptions in this section only if you have primary responsibility for
designing and manufacturing equipment and your manufacturing procedures
include installing some engines in this equipment. Consider all U.S.-
directed equipment sales in showing that you meet the requirements of
this section, including those from any parent or subsidiary companies
and those from any other companies you license to produce equipment for
you. If you produce a type of equipment that has more than one engine,
count each engine separately. These provisions are available over the
following periods:
(1) These provisions are available for the years shown in the
following table, except as provided in paragraph (a)(2) of this section:

Table 1 of Sec. 1039.625.--General Availability of Allowances
------------------------------------------------------------------------
Power category Calendar years
------------------------------------------------------------------------
kW < 19............................................... 2008-2014
19 < = kW < 56......................................... 2008-2014
56 < = kW < 130........................................ 2012-2018
130 < = kW < = 560...................................... 2011-2017
kW < 560.............................................. 2011-2017
------------------------------------------------------------------------

(2) If you do not use any allowances in a power category before the
earliest dates shown in the following table, you may delay the start of
the seven-year period for using allowances under this section as
follows:

Table 2 of Sec. 1039.625.--Availability of Delayed Allowances
------------------------------------------------------------------------
Power category Calendar years
------------------------------------------------------------------------
kW < 19............................................... ................
19 < = kW < 56......................................... 2012-2018
56 < = kW < 130........................................ 2014-2020
130 < = kW < = 560...................................... 2014-2020
kW > 560.............................................. 2015-2021
------------------------------------------------------------------------

(b) Allowances. You may choose one of the following options for
each power category to produce equipment with exempted engines under
this section, except as allowed under Sec. 1039.627:
(1) Percent-of-production allowances. You may produce a certain
number of units with exempted engines calculated using a percentage of
your total sales within a power category relative to your total U.S.-
directed production volume. The sum of these percentages within a power
category during the seven-year period specified in paragraph (a) of
this section may not exceed 80 percent, except as allowed under
paragraph (b)(2) or (m) of this section.
(2) Small-volume allowances. You may determine an alternate
allowance for a specific number of exempted engines under this section
using one of the following approaches for your U.S.-directed production
volumes:
(i) You may produce up to 700 units with exempted engines within a
power category during the seven-year period specified in paragraph (a)
of this section, with no more than 200 units in any single year within
a power category, except as provided in paragraph (m) of this section.
Engines within a power category that are exempted under this section
must be from a single engine family within a given year.
(ii) For engines below 130 kW, you may produce up to 525 units with
exempted engines within a power category during the seven-year period
specified in paragraph (a) of this section, with no more than 150 units
in any single year within a power category, except as provided in
paragraph (m) of this section. For engines at or above 130 kW, you may
produce up to 350 units with exempted engines within a power category
during the seven-year period, with no more than 100 units in any single
year within a power category. Exemptions under this paragraph
(b)(2)(ii) may apply to engines from multiple engine families in a
given year.
(c) Percentage calculation. Calculate for each calendar year the
percentage of equipment with exempted engines from your total U.S.-
directed production within a power category if you need to show that
you meet the percent-of-production allowances in paragraph (b)(1) of
this section.
(d) Inclusion of engines not subject to Tier 4 standards. The
following provisions apply to engines that are not subject to Tier 4
standards:
(1) If you use the provisions of Sec. 1068.105(a) to use up your
inventories of engines not certified to new emission standards, do not
include these units in your count of equipment with exempted engines
under paragraph (b) of this section. However, you may include these
units in your count of total equipment you produce for the given year
for the percentage calculation in paragraph (b)(1) of this section.
(2) If you install engines that are exempted from the Tier 4
standards for any reason, other than for equipment-manufacturer
allowances under this section, do not include these units in your count
of exempted engines under paragraph (b) of this section. However, you
may include these units in your count of total equipment you produce
for the given year for the percentage calculation in paragraph (b)(1)
of this section. For example, if we grant a hardship exemption for the
engine manufacturer, you may count these as compliant engines under
this section. This paragraph (d)(2) applies only if the engine has a
permanent label describing why it is exempted from the Tier 4 standards.
(3) Do not include equipment using model year 2008 or 2009 engines
certified under the provisions of Sec. 1039.101(c) in your count of
equipment using exempted engines. However, you may include these units
in your count of total equipment you produce for the given year for the
percentage calculation in paragraph (b)(1) of this section.

[[Page 39239]]

(4) You may start using the allowances under this section for
engines that are not yet subject to Tier 4 standards, as long as the
seven-year period for using allowances under the Tier 2 or Tier 3
program has expired (see 40 CFR 89.102(d)). Table 3 of this section
shows the years for which this applies. To use these early allowances,
you must use engines that meet the emission standards described in
paragraph (e) of this section. You must also count these units or
calculate these percentages as described in paragraph (c) of this
section and apply them toward the total number or percentage of
equipment with exempted engines we allow for the Tier 4 standards as
described in paragraph (b) of this section. The maximum number of
cumulative early allowances under this paragraph (d)(4) is 10 percent
under the percent-of-production allowance or 100 units under the small-
volume allowance. For example, if you produce 5 percent of your
equipment with engines between 130 and 560 kW that use allowances under
this paragraph (d)(4) in 2009, you may use up to an additional 5
percent of your allowances in 2010. If you use allowances for 5 percent
of your equipment in both 2009 and 2010, your 80 percent allowance for
2011-2017 in the 130-560 kW power category decreases to 70 percent.
Manufacturers using allowances under this paragraph (d)(4) must comply
with the notification and reporting requirements specified in paragraph
(g) of this section.

Table 3 of Sec. 1039.625.--Years for Early Allowances
------------------------------------------------------------------------
Maximum engine power Calendar years
------------------------------------------------------------------------
kW < 19............................................... 2007
19 < = kW < 37......................................... 2006-2011
37 < = kW < 56......................................... 2011
56 < = kW < 75......................................... 2011
75 < = kW < 130........................................ 2010-2011
130 < = kW < 225....................................... 2010
225 < = kW < 450....................................... 2008-2010
450 < = kW < = 560...................................... 2009-2010
KW > 560.............................................. ................
------------------------------------------------------------------------

(e) Standards. If you produce equipment with exempted engines under
this section, the engines must meet emission standards at least as
stringent as the following:
(1) If you are using the provisions of paragraph (d)(4) of this
section, engines must meet the applicable Tier 1 emission standards
described in Sec. 89.112.
(2) If you are using the provisions of paragraph (a)(2) of this
section, engines must be certified under this part 1039 as follows:

------------------------------------------------------------------------
Must meet all
standards and
requirements
Engines in the following power category . . . that applied in
the following
model year . . .
------------------------------------------------------------------------
(i) 19 < = kW < 56..................................... 2008
(ii) 56 < = kW < 130................................... 2012
(iii) 130 < = kW < = 560................................ 2011
(iv) kW > 560......................................... 2011
------------------------------------------------------------------------

(3) In all other cases, engines at or above 37 kW and at or below
560 kW must meet the appropriate Tier 3 standards described in Sec.
89.112. Engines below 37 kW and engines above 560 kW must meet the
appropriate Tier 2 standards described in Sec. 89.112.
(f) Equipment labeling. You must add a permanent label, written
legibly in English, to the engine or another readily visible part of
each piece of equipment you produce with exempted engines under this
section. This label, which supplements the engine manufacturer's
emission control information label, must include at least the following
items:
(1) The label heading ``EMISSION CONTROL INFORMATION''.
(2) Your corporate name and trademark.
(3) The calendar year in which the equipment is manufactured.
(4) The name, e-mail address, and phone number of a person to
contact for further information.
(5) The following statement:

THIS EQUIPMENT [or identify the type of equipment]
HAS AN ENGINE
THAT MEETS U.S. EPA EMISSION STANDARDS UNDER 40 CFR 1039.625.

(g) Notification and reporting. You must notify us of your intent
to use the provisions of this section and send us an annual report to
verify that you are not exceeding the allowances, as follows:
(1) Before January 1 of the first year you intend to use the
provisions of this section, send the Designated Compliance Officer and
the Designated Enforcement Officer a written notice of your intent,
including:
(i) Your company's name and address, and your parent company's name
and address, if applicable.
(ii) Whom to contact for more information.
(iii) The calendar years in which you expect to use the exemption
provisions of this section.
(iv) The name and address of the company that produces the engines
you will be using for the equipment exempted under this section.
(v) Your best estimate of the number of units in each power
category you will produce under this section and whether you intend to
comply under paragraph (b)(1) or (b)(2) of this section.
(vi) The number of units in each power category you have sold in
previous calendar years under 40 CFR 89.102(d).
(2) For each year that you use the provisions of this section, send
the Designated Compliance Officer and the Designated Enforcement
Officer a written report by March 31 of the following year. Include in
your report the total number of engines you sold in the preceding year
for each power category, based on actual U.S.-directed production
information. Also identify the percentages of U.S.-directed production
that correspond to the number of units in each power category and the
cumulative numbers and percentages of units for all the units you have
sold under this section for each power category. You may omit the
percentage figures if you include in the report a statement that you
will not be using the percent-of-production allowances in paragraph
(b)(1) of this section.
(h) Recordkeeping. Keep the following records of all equipment with
exempted engines you produce under this section for at least five full
years after the final year in which allowances are available for each
power category:
(1) The model number, serial number, and the date of manufacture
for each engine and piece of equipment.
(2) The maximum power of each engine.
(3) The total number or percentage of equipment with exempted
engines, as described in paragraph (b) of this section and all
documentation supporting your calculation.
(4) The notifications and reports we require under paragraph (g) of
this section.
(i) Enforcement. Producing more exempted engines or equipment than
we allow under this section or installing engines that do not meet the
emission standards of paragraph (e) of this section violates the
prohibitions in 40 CFR 1068.101(a)(1). You must give us the records we
require under this section if we ask for them (see 40 CFR
1068.101(a)(2)).
(j) Provisions for engine manufacturers. As an engine manufacturer,
you may produce exempted engines as needed under this section. You do
not have to request this exemption for your engines, but you must have
written assurance from equipment manufacturers that they need a certain
number of exempted engines under this section. Send us an annual report
of the engines you produce under this section, as described in

[[Page 39240]]

Sec. 1039.250(a). For engines produced under the provisions of
paragraph (a)(2) of this section, you must certify the engines under
this part 1039. For all other exempt engines, the engines must meet the
emission standards in paragraph (e) of this section and you must meet
all the requirements of Sec. 1039.260. If you show under Sec.
1039.260(c) that the engines are identical in all material respects to
engines that you have previously certified to one or more FELs above
the standards specified in paragraph (e) of this section, you must
supply sufficient credits for these engines. Calculate these credits
under subpart H of this part using the previously certified FELs and
the alternate standards. You must meet the labeling requirements in 40
CFR 89.110, but add the following statement instead of the compliance
statement in 40 CFR 89.110(b)(10):

THIS ENGINE MEETS U.S. EPA EMISSION STANDARDS UNDER 40 CFR 1039.625.
SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSE OTHER THAN FOR THE
EQUIPMENT FLEXIBILITY PROVISIONS OF 40 CFR 1039.625 MAY BE A
VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.

(k) Other exemptions. See 40 CFR 1068.255 for exemptions based on
hardship for equipment manufacturers and secondary engine
manufacturers.
(l) [Reserved]
(m) Additional exemptions for technical or engineering hardship.
You may request additional engine allowances under paragraph (b)(1) of
this section for 19-560 kW power categories or, if you are a small
equipment manufacturer, under paragraph (b)(2) of this section for
engines at or above 19 and below 37 kW. However, you may use these
extra allowances only for those equipment models for which you, or an
affiliated company, do not also produce the engine. After considering
the circumstances, we may permit you to introduce into commerce
equipment with such engines that do not comply with Tier 4 emission
standards, as follows:
(1) We may approve additional exemptions if extreme and unusual
circumstances that are clearly outside your control and that could not
have been avoided with reasonable discretion have resulted in technical
or engineering problems that prevent you from meeting the requirements
of this part. You must show that you exercised prudent planning and
have taken all reasonable steps to minimize the scope of your request
for additional allowances.
(2) To apply for exemptions under this paragraph (m), send the
Designated Compliance Officer and the Designated Enforcement Officer a
written request as soon as possible before you are in violation. In
your request, include the following information:
(i) Describe your process for designing equipment.
(ii) Describe how you normally work cooperatively or concurrently
with your engine supplier to design products.
(iii) Describe the engineering or technical problems causing you to
request the exemption and explain why you have not been able to solve
them. Describe the extreme and unusual circumstances that led to these
problems and explain how they were unavoidable.
(iv) Describe any information or products you received from your
engine supplier related to equipment design--such as written
specifications, performance data, or prototype engines--and when you
received it.
(v) Compare the design processes of the equipment model for which
you need additional exemptions and that for other models for which you
do not need additional exemptions. Explain the technical differences
that justify your request.
(vi) Describe your efforts to find and use other compliant engines,
or otherwise explain why none is available.
(vii) Describe the steps you have taken to minimize the scope of
your request.
(viii) Include other relevant information. You must give us other
relevant information if we ask for it.
(ix) Estimate the increased percent of production you need for each
equipment model covered by your request, as described in paragraph
(m)(3) of this section. Estimate the increased number of allowances you
need for each equipment model covered by your request, as described in
paragraph (m)(4) of this section.
(3) We may approve your request to increase the allowances under
paragraph (b)(1) of this section, subject to the following limitations:
(i) The additional allowances will not exceed 70 percent for each
power category.
(ii) You must use up the allowances under paragraph (b)(1) of this
section before using any additional allowance under this paragraph (m).
(iii) Any allowances we approve under this paragraph (m)(3) expire
24 months after the provisions of this section start for a given power
category, as described in paragraph (a) of this section. You may use
these allowances only for the specific equipment models covered by your
request.
(4) We may approve your request to increase the allowances for the
19-56 kW power category under paragraph (b)(2) of this section, subject
to the following limitations:
(i) You are eligible for additional allowances under this paragraph
(m)(4) only if you are a small equipment manufacturer and you do not
use the provisions of paragraph (m)(3) of this section to obtain
additional allowances for the 19-56 kW power category.
(ii) You must use up all the available allowances for the 19-56 kW
power category under paragraph (b)(2) of this section in a given year
before using any additional allowances under this paragraph (m)(4).
(iii) Base your request only on equipment you produce with engines
at or above 19 kW and below 37 kW. You may use any additional
allowances only for equipment you produce with engines at or above 19
kW and below 37 kW.
(iv) The total allowances under either paragraph (b)(2)(i) or (ii)
of this section for the 19-56 kW power category will not exceed 1,100
units.
(v) Any allowances we approve under this paragraph (m)(4) expire 36
months after the provisions of this section start for this power
category, as described in paragraph (a) of this section. These
additional allowances are not subject to the annual limits specified in
paragraph (b)(2) of this section. You may use these allowances only for
the specific equipment models covered by your request.
(5) For purposes of this paragraph (m), small equipment
manufacturer means a small-business equipment manufacturer that had
annual U.S.-directed production volume of equipment using nonroad
diesel engines between 19 and 56 kW of no more than 3,000 units in 2002
and all earlier calendar years, and has 750 or fewer employees (500 or
fewer employees for nonroad equipment manufacturers that produce no
construction equipment or industrial trucks). For manufacturers owned
by a parent company, the production limit applies to the production of
the parent company and all its subsidiaries and the employee limit
applies to the total number of employees of the parent company and all
its subsidiaries.

Sec. 1039.626 What special provisions apply to equipment imported
under the equipment-manufacturer flexibility program?

This section describes requirements that apply to equipment
manufacturers using the provisions of Sec. 1039.625 for

[[Page 39241]]

equipment produced outside the United States. Note that Sec. 1039.625
limits these provisions to equipment manufacturers that install some
engines and have primary responsibility for designing and manufacturing
equipment. Companies that import equipment into the United States
without meeting these criteria are not eligible for these allowances.
Such importers may import equipment with exempted engines only as
described in paragraph (b) of this section.
(a) As a foreign equipment manufacturer, you or someone else may
import equipment with exempted engines under this section if you comply
with the provisions in Sec. 1039.625 and commit to the following:
(1) Give any EPA inspector or auditor complete and immediate access
to inspect and audit, as follows:
(i) Inspections and audits may be announced or unannounced.
(ii) Inspections and audits may be by EPA employees or EPA contractors.
(iii) You must provide access to any location where--
(A) Any nonroad engine, equipment, or vehicle is produced or stored.
(B) Documents related to manufacturer operations are kept.
(C) Equipment, engines, or vehicles are tested or stored for testing.
(iv) You must provide any documents requested by an EPA inspector
or auditor that are related to matters covered by the inspections or audit.
(v) EPA inspections and audits may include review and copying of
any documents related to demonstrating compliance with the exemptions
in Sec. 1039.625.
(vi) EPA inspections and audits may include inspection and
evaluation of complete or incomplete equipment, engines, or vehicles,
and interviewing employees.
(vii) You must make any of your employees available for interview
by the EPA inspector or auditor, on request, within a reasonable time
period.
(viii) You must provide English language translations of any
documents to an EPA inspector or auditor, on request, within 10 working
days.
(ix) You must provide English-language interpreters to accompany
EPA inspectors and auditors, on request.
(2) Name an agent for service of process located in the District of
Columbia. Service on this agent constitutes service on you or any of
your officers or employees for any action by EPA or otherwise by the
United States related to the requirements of this part.
(3) The forum for any civil or criminal enforcement action related
to the provisions of this section for violations of the Clean Air Act
or regulations promulgated thereunder shall be governed by the Clean
Air Act.
(4) The substantive and procedural laws of the United States shall
apply to any civil or criminal enforcement action against you or any of
your officers or employees related to the provisions of this section.
(5) Provide the notification required by Sec. 1039.625(g). Include
in the notice of intent in Sec. 1039.625(g)(1) a commitment to comply
with the requirements and obligations of Sec. 1039.625 and this
section. This commitment must be signed by the owner or president.
(6) You, your agents, officers, and employees must not seek to
detain or to impose civil or criminal remedies against EPA inspectors
or auditors, whether EPA employees or EPA contractors, for actions
performed within the scope of EPA employment related to the provisions
of this section.
(7) By submitting notification of your intent to use the provisions
of Sec. 1039.625, producing and exporting for resale to the United
States nonroad equipment under this section, or taking other actions to
comply with the requirements of this part, you, your agents, officers,
and employees, without exception, become subject to the full operation
of the administrative and judicial enforcement powers and provisions of
the United States as described in 28 U.S.C. 1605(a)(2), without
limitation based on sovereign immunity, for conduct that violates the
requirements applicable to you under this part 1039--including such
conduct that violates 18 U.S.C. 1001, 42 U.S.C. 7413(c)(2), or other
applicable provisions of the Clean Air Act'with respect to actions
instituted against you and your agents, officers, and employees in any
court or other tribunal in the United States.
(8) Any report or other document you submit to us must be in the
English language, or include a complete translation in English.
(9) You must post a bond to cover any potential enforcement actions
under the Clean Air Act before you or anyone else imports your
equipment under this section, as follows:
(i) The value of the bond is based on the per-engine bond values
shown in Table 1 of this section and on the highest number of engines
in each power category you produce in any single calendar year under
the provisions of Sec. 1039.625. For example, if you have projected
U.S.-directed production volumes of 100 exempt engines in the 19-56 kW
power category and 300 exempt engines in the 56-130 kW power category
in 2013, the appropriate bond amount is $180,000. If your estimated or
actual engine imports increase beyond the level appropriate for your
current bond payment, you must post additional bond to reflect the
increased sales within 90 days after you change your estimate or
determine the actual sales. You may not decrease your bond.
(ii) You may meet the bond requirements of this section with any of
the following methods:
(A) Get a bond from a third-party surety that is cited in the U.S.
Department of Treasury Circular 570, ``Companies Holding Certificates
of Authority as Acceptable Sureties on Federal Bonds and as Acceptable
Reinsuring Companies.'' Maintain this bond for five years after the
applicable allowance period expires, or five years after you use up all
the available allowances under Sec. 1039.625, whichever comes first.
(B) Get the Designated Enforcement Officer to approve a waiver from
the bonding requirement, as long as you can show that you have assets
of an appropriate liquidity and value readily available in the United
States.
(iii) If you forfeit some or all of your bond in an enforcement
action, you must post any appropriate bond for continuing importation
within 90 days after you forfeit the bond amount.

Table 1 of Sec. 1039.626.--Per-Engine Bond Values
------------------------------------------------------------------------
The per-engine
For engines with maximum engine power falling in the bond value is
following ranges . . . . . .
------------------------------------------------------------------------
kW < 19................................................. $150
19 < = kW < 56........................................... 300
56 < = kW < 130.......................................... 500
130 < = kW < 225......................................... 1,000
225 < = kW < 450......................................... 3,000
kW >= 450............................................... 8,000
------------------------------------------------------------------------

(iv) You will forfeit the proceeds of the bond posted under this
paragraph (a)(9) if you need to satisfy any United States
administrative final order or judicial judgment against you arising
from your conduct in violation of this part 1039, including such
conduct that violates 18 U.S.C. 1001, 42 U.S.C. 7413(c)(2), or other
applicable provisions of the Clean Air Act.
(b) The provisions of this paragraph (b) apply to importers that do
not install engines into equipment and do not have primary
responsibility for designing and manufacturing equipment. Such
importers may import equipment with engines exempted under Sec.
1039.625 only if each engine is exempted under an allowance provided to
an equipment manufacturer meeting the requirements

[[Page 39242]]

of Sec. 1039.625 and this section. You must notify us of your intent
to use the provisions of this section and send us an annual report, as
follows:
(1) Before January 1 of the first year you intend to use the
provisions of this section, send the Designated Compliance Officer and
the Designated Enforcement Officer a written notice of your intent,
including:
(i) Your company's name and address, and your parent company's name
and address, if applicable.
(ii) The name and address of the companies that produce the
equipment and engines you will be importing under this section.
(iii) Your best estimate of the number of units in each power
category you will import under this section in the upcoming calendar
year, broken down by equipment manufacturer and power category.
(iv) The number of units in each power category you have imported
in previous calendar years under 40 CFR 89.102(d).
(2) For each year that you use the provisions of this section, send
the Designated Compliance Officer and the Designated Enforcement
Officer a written report by March 31 of the following year. Include in
your report the total number of engines you imported under this section
in the preceding calendar year, broken down by engine manufacturer and
by equipment manufacturer.

Sec. 1039.627 What are the incentives for equipment manufacturers to
use cleaner engines?

This section allows equipment manufacturers to generate additional
allowances under the provisions of Sec. 1039.625 by producing
equipment using engines at or above 19 kW certified to specified levels
earlier than otherwise required.
(a) For early-compliant engines to generate offsets for use under
this section, the following general provisions apply:
(1) The engine manufacturer must comply with the provisions of
Sec. 1039.104(a)(1) for the offset-generating engines.
(2) Engines you install in your equipment after December 31 of the
years specified in Sec. 1039.104(a)(1) do not generate allowances
under this section, even if the engine manufacturer generated offsets
for that engine under Sec. 1039.104(a).
(3) Offset-generating engines must be certified to the following
standards under this part 1039:

----------------------------------------------------------------------------------------------------------------
You may reduce
the number of
Certified early engines in the
If the engine's maximum And you install . . . to the . . . same power In later model
power is . . . category that years by . . .
are required to
meet the . . .
----------------------------------------------------------------------------------------------------------------
(i) kW >= 19............... One engine................. Emissions Standards in One engine.
standards in Tables 2
Sec. through 7 of
1039.101. Sec.
1039.102 or in
Sec.
1039.101.
(ii) 56 < = kW < 130........ Two engines................ NOX standards Standards in One engine.
in Sec. Tables 2
1039.102(d)(1) through 7 of
, and NMHC Sec.
standard of 1039.102 or in
0.19 g/kW-hr, Sec.
a PM standard 1039.101.
of 0.02 g/kW-
hr, and a CO
standard of
5.0 g/kW-hr.
(iii) 130 < = kW < 560...... Two engines................ NOX standards Standards in One engine.
in Sec. Tables 2
1039.102(d)(2) through 7 of
, an NMHC Sec.
standard of 1039.102 or in
0.19 g/kW-hr, Sec.
a PM standard 1039.101.
of 0.02 g/kW-
hr, and a CO
standard of
3.5 g/kW-hr.
----------------------------------------------------------------------------------------------------------------

(b) Using engine offsets. (1) You may use engine offsets generated
under paragraph (a) of this section to generate additional allowances
under Sec. 1039.625, as follows:
(i) For each engine offset, you may increase the number of
available allowances under Sec. 1039.625(b) for that power category by
one engine for the years indicated.
(ii) For engines in 56-560 kW power categories, you may transfer
engine offsets across power categories within this power range.
Calculate the number of additional allowances by scaling the number of
generated engine offsets according to the ratio of engine power for
offset and allowance engines. Make this calculation for all your offset
engines for which you will transfer offsets under this paragraph
(b)(1)(ii), then round the result to determine the total number of
available power-weighted allowances. For example, if you generate
engine offsets for 75 500-kW engines, you may generate up to 37,500 kW-
engines of power-weighted allowances. You may apply this to 375 100-kW
engines or any other combination that totals 37,500 kW-engines.
(2) You may decline to use the offsets. If you decline, the engine
manufacturer may use the provisions of Sec. 1039.104(a)(1).
(c) Limitation on offsets for engines above 560 kW. For engines
above 560 kW, you must track how many engines you install in generator
sets and how many you install in other applications under the
provisions of this section. Offsets from generator-set engines may be
used only for generator-set engines. Offsets from engines for other
applications may be used only for other applications besides generator
sets.
(d) Reporting. When you submit your first annual report under Sec.
1039.625(g), include the following additional information related to
the engines you use to generate offsets under this section:
(1) The name of each engine family involved.
(2) The number of engines from each power category.
(3) The maximum engine power of each engine.
(4) For engines above 560 kW, whether you use engines certified to
the standards for generator-set engines.
(e) In-use fuel. If the engine manufacturer certifies using ultra
low-sulfur diesel fuel, you must take steps to ensure that the in-use
engines in the family will use diesel fuel with a sulfur concentration
no greater than 15 ppm. For example, selling equipment only into
applications where the operator commits to a central-fueling facility
with ultra low-sulfur diesel fuel throughout its lifetime would meet
this requirement.

Sec. 1039.630 What are the economic hardship provisions for equipment
manufacturers?

If you qualify for the economic hardship provisions specified in 40
CFR 1068.255, we may approve your hardship application subject to the
following additional conditions:
(a) You must show that you have used up the allowances to produce
equipment with exempted engines under Sec. 1039.625.
(b) You may produce equipment under this section for up to 12 months

[[Page 39243]]

total (or 24 months total for small-volume manufacturers).

Sec. 1039.635 What are the hardship provisions for engine
manufacturers?

If you qualify for the hardship provisions specified in 40 CFR
1068.245, we may approve a period of delayed compliance for up to one
model year total (or two model years total for small-volume
manufacturers). If you qualify for the hardship provisions specified in
40 CFR 1068.250 for small-volume manufacturers, we may approve a period
of delayed compliance for up to two model years total.

Sec. 1039.640 What special provisions apply to branded engines?

The following provisions apply if you identify the name and
trademark of another company instead of your own on your emission
control information label, as provided by Sec. 1039.135(c)(2):
(a) You must have a contractual agreement with the other company
that obligates that company to take the following steps:
(1) Meet the emission warranty requirements that apply under Sec.
1039.120. This may involve a separate agreement involving reimbursement
of warranty-related expenses.
(2) Report all warranty-related information to the certificate
holder.
(b) In your application for certification, identify the company
whose trademark you will use and describe the arrangements you have
made to meet your requirements under this section.
(c) You remain responsible for meeting all the requirements of this
chapter, including warranty and defect-reporting provisions.

Sec. 1039.645 What special provisions apply to engines used for
transportation refrigeration units?

Manufacturers may choose to use the provisions of this section for
engines used in transportation refrigeration units (TRUs). The
operating restrictions and characteristics in paragraph (f) of this
section define engines that are not used in TRUs. All provisions of
this part apply for TRU engines, except as specified in this section.
(a) You may certify engines under this section with the following
special provisions:
(1) The engines are not subject to the transient emission standards
of subpart B of this part.
(2) The steady-state emission standards in subpart B of this part
apply for emissions measured over the steady-state test cycle described
in paragraph (b) of this section instead of the otherwise applicable
duty cycle described in Sec. 1039.505.
(b) Measure steady-state emissions using the procedures specified
in Sec. 1039.505, except for the duty cycles, as follows:
(1) The following duty cycle applies for discrete-mode testing:

Table 1 of Sec. 1039.645.--Discrete-Mode Cycle for TRU Engines
------------------------------------------------------------------------
Observed Weighting
Mode number Engine speed \1\ torque \2\ factors
------------------------------------------------------------------------
1..................... Maximum test speed.... 75 0.25
2..................... Maximum test speed.... 50 0.25
3..................... Intermediate test 75 0.25
speed.
4..................... Intermediate test 50 0.25
speed.
------------------------------------------------------------------------
\1\ Speed terms are defined in 40 CFR part 1065.
\2\ The percent torque is relative to the maximum torque at the given
engine speed.

(2) The following duty cycle applies for ramped-modal testing:

Table 2 of Sec. 1039.645.--Ramped-Modal Cycle for TRU Engines
----------------------------------------------------------------------------------------------------------------
Time in mode
RMC mode (seconds) Engine speed \1\ Torque (percent) 2 3
----------------------------------------------------------------------------------------------------------------
1a Steady-state..................... 290 Intermediate Speed..... 75.
1b Transition....................... 20 Intermediate Speed..... Linear Transition.
2a Steady-state..................... 280 Intermediate Speed..... 50.
2b Transition....................... 20 Linear Transition...... Linear Transition.
3a Steady-state..................... 280 Maximum Test Speed..... 75.
3b Transition....................... 20 Maximum Test Speed..... Linear Transition.
4 Steady-state...................... 290 Maximum Test Speed..... 50
----------------------------------------------------------------------------------------------------------------
\1\ Speed terms are defined in 40 CFR part 1065.
\2\ The percent torque is relative to the maximum torque at the commanded engine speed.
\3\ Advance from one mode to the next within a 20-second transition phase. During the transition phase, command
a linear progression from the torque setting of the current mode to the torque setting of the next mode, and
simultaneously command a similar linear progression for engine speed if there is a change in speed setting.

(c) Engines certified under this section must be certified in a
separate engine family that contains only TRU engines.
(d) You must do the following for each engine certified under this
section:
(1) State on the emission control information label: ``THIS ENGINE
IS CERTIFIED TO OPERATE ONLY IN TRANSPORTATION REFRIGERATION UNITS.
INSTALLING OR USING THIS ENGINE IN ANY OTHER APPLICATION MAY BE A
VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.''.
(2) State in the emission-related installation instructions all
steps necessary to ensure that the engine will operate only in the
modes covered by the test cycle described in this section.
(3) Keep records to document the destinations and quantities of
engines produced under this section.
(e) All engines certified under this section must comply with NTE
standards, as described in Sec. 1039.101 or Sec. 1039.102 for the
applicable model year, except that the NTE standards are not limited
with respect to operating speeds and loads. In your application

[[Page 39244]]

for certification, certify that all the engines in the engine family
comply with the not-to-exceed emission standards for all normal
operation and use. The deficiency provisions of Sec. 1039.104(d) do
not apply to these engines. This paragraph (e) applies whether or not
the engine would otherwise be subject to NTE standards.
(f) An engine is not considered to be used in a TRU if any of the
following is true:
(1) The engine is installed in any equipment other than
refrigeration units for railcars, truck trailers, or other freight vehicles.
(2) The engine operates in any mode not covered by the test cycle
described in this section, except as follows:
(i) The engine may operate briefly at idle. Note, however, that TRU
engines must meet NTE emission standards under any type of operation,
including idle, as described in paragraph (e) of this section.
(ii) The engine may have a minimal amount of transitional operation
between two allowable modes. As an example, a thirty-second transition
period would clearly not be considered minimal.
(iii) The engine as installed may experience up to a 2-percent
decrease in load at a given setpoint over any 10-minute period, and up
to a 15-percent decrease in load at a given setpoint over any 60-minute
period.
(3) The engine is sold in a configuration that allows the engine to
operate in any mode not covered by the test cycle described in this
section. For example, this section does not apply to an engine sold
without a governor limiting operation only to those modes covered by
the test cycle described in this section.
(4) The engine is subject to Tier 3 or earlier standards, or phase-
out Tier 4 standards.

Sec. 1039.650 [Reserved]

Sec. 1039.655 What special provisions apply to engines sold in Guam,
American Samoa, or the Commonwealth of the Northern Mariana Islands?

(a) The prohibitions in Sec. 1068.101(a)(1) do not apply to an
engine if the following conditions are met:
(1) The engine is intended for use and will be used in Guam,
American Samoa, or the Commonwealth of the Northern Mariana Islands.
(2) The engine meets the latest applicable emission standards in 40
CFR 89.112.
(3) You meet all the requirements of Sec. 1039.260.
(b) If you introduce an engine into commerce in the United States
under this section, you must meet the labeling requirements in 40 CFR
89.110, but add the following statement instead of the compliance
statement in 40 CFR 89.110(b)(10):

THIS ENGINE DOES NOT COMPLY WITH U.S. EPA TIER 4 EMISSION
REQUIREMENTS. IMPORTING THIS ENGINE INTO THE UNITED STATES OR ANY
TERRITORY OF THE UNITED STATES EXCEPT GUAM, AMERICAN SAMOA, OR THE
COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS MAY BE A VIOLATION OF
FEDERAL LAW SUBJECT TO CIVIL PENALTY.

(c) Introducing into commerce an engine exempted under this section
in any state or territory of the United States other than Guam,
American Samoa, or the Commonwealth of the Northern Mariana Islands,
throughout its lifetime, violates the prohibitions in 40 CFR
1068.101(a)(1), unless it is exempt under a different provision.

Sec. 1039.660 What special provisions apply to Independent Commercial
Importers?

Under Sec. 1039.801, certain engines are considered to be new
engines when they are imported into the United States, even if they
have previously been used outside the country. Independent Commercial
Importers may use the provisions of 40 CFR part 89, subpart G, and 40
CFR 89.906(b) to receive a certificate of conformity for engines
meeting all the requirements of this part 1039.

Subpart H--Averaging, Banking, and Trading for Certification

Sec. 1039.701 General provisions.

(a) You may average, bank, and trade (ABT) emission credits for
purposes of certification as described in this subpart to show
compliance with the standards of this part. Participation in this
program is voluntary.
(b) Section 1039.740 restricts the use of emission credits to
certain averaging sets.
(c) The definitions of Subpart I of this part apply to this
subpart. The following definitions also apply:
(1) Actual emission credits means emission credits you have
generated that we have verified by reviewing your final report.
(2) Averaging set means a set of engines in which emission credits
may be exchanged only with other engines in the same averaging set.
(3) Broker means any entity that facilitates a trade of emission
credits between a buyer and seller.
(4) Buyer means the entity that receives emission credits as a
result of a trade.
(5) Reserved emission credits means emission credits you have
generated that we have not yet verified by reviewing your final report.
(6) Seller means the entity that provides emission credits during a
trade.
(7) Standard means the emission standard that applies under subpart
B of this part for engines not participating in the ABT program of this
subpart.
(8) Trade means to exchange emission credits, either as a buyer or
seller.
(d) You may not use emission credits generated under this subpart
to offset any emissions that exceed an FEL or standard. This applies
for all testing, including certification testing, in-use testing,
selective enforcement audits, and other production-line testing.
However, if emissions from an engine exceed an FEL or standard (for
example, during a selective enforcement audit), you may use emission
credits to recertify the engine family with a higher FEL that applies
only to future production.
(e) Engine families that use emission credits for one or more
pollutants may not generate positive emission credits for another
pollutant.
(f) Emission credits may be used in the model year they are
generated or in future model years. Emission credits may not be used
for past model years.
(g) You may increase or decrease an FEL during the model year by
amending your application for certification under Sec. 1039.225. The
new FEL may apply only to engines you have not already introduced into
commerce. Each engine's emission control information label must include
the applicable FELs.

Sec. 1039.705 How do I generate and calculate emission credits?

The provisions of this section apply separately for calculating
emission credits for NO_X, NO_X+NMHC, or PM.
(a) Calculate positive emission credits for an engine family that
has an FEL below the otherwise applicable standard. Calculate negative
emission credits for an engine family that has an FEL above the
otherwise applicable standard.
(b) For each participating engine family, calculate positive or
negative emission credits relative to the otherwise applicable emission
standard. Round calculated emission credits to the nearest kilogram
(kg), using consistent units throughout the following equation:

Emission credits (kg) = (Std - FEL) x (Volume) x (AvgPR) x (UL) x
(10-3)

[[Page 39245]]

Where:

Std = the emission standard, in grams per kilowatt-hour, that
applies under subpart B of this part for engines not participating
in the ABT program of this subpart (the ``otherwise applicable
standard'').
FEL = the family emission limit for the engine family, in grams per
kilowatt-hour.
Volume = the number of engines eligible to participate in the
averaging, banking, and trading program within the given engine
family during the model year, as described in paragraph (c) of this
section.
AvgPR = the average maximum engine power of all the engine
configurations within an engine family, calculated on a sales-
weighted basis, in kilowatts.
UL = the useful life for the given engine family, in hours.

(c) In your application for certification, base your showing of
compliance on projected production volumes for engines whose point of
first retail sale is in the United States. As described in Sec.
1039.730, compliance with the requirements of this subpart is
determined at the end of the model year based on actual production
volumes for engines whose point of first retail sale is in the United
States. Do not include any of the following engines to calculate
emission credits:
(1) Engines exempted under subpart G of this part or under 40 CFR
part 1068.
(2) Exported engines.
(3) Engines not subject to the requirements of this part, such as
those excluded under Sec. 1039.5.
(4) [Reserved]
(5) Any other engines, where we indicate elsewhere in this part
1039 that they are not to be included in the calculations of this subpart.

Sec. 1039.710 How do I average emission credits?

(a) Averaging is the exchange of emission credits among your engine
families. You may average emission credits only within the same
averaging set.
(b) You may certify one or more engine families to an FEL above the
applicable standard, subject to the FEL caps and other provisions in
subpart B of this part, if you show in your application for
certification that your projected balance of all emission-credit
transactions in that model year is greater than or equal to zero.
(c) If you certify an engine family to an FEL that exceeds the
otherwise applicable standard, you must obtain enough emission credits
to offset the engine family's deficit by the due date for the final
report required in Sec. 1039.730. The emission credits used to address
the deficit may come from your other engine families that generate
emission credits in the same model year, from emission credits you have
banked, or from emission credits you obtain through trading.

Sec. 1039.715 How do I bank emission credits?

(a) Banking is the retention of emission credits by the
manufacturer generating the emission credits for use in averaging or
trading in future model years. You may use banked emission credits only
within the averaging set in which they were generated.
(b) In your application for certification, designate any emission
credits you intend to bank. These emission credits will be considered
reserved credits. During the model year and before the due date for the
final report, you may redesignate these emission credits for averaging
or trading.
(c) You may use banked emission credits from the previous model
year for averaging or trading before we verify them, but we may revoke
these emission credits if we are unable to verify them after reviewing
your reports or auditing your records.
(d) Reserved credits become actual emission credits only when we
verify them in reviewing your final report.

Sec. 1039.720 How do I trade emission credits?

(a) Trading is the exchange of emission credits between
manufacturers. You may use traded emission credits for averaging,
banking, or further trading transactions. Traded emission credits may
be used only within the averaging set in which they were generated.
(b) You may trade actual emission credits as described in this
subpart. You may also trade reserved emission credits, but we may
revoke these emission credits based on our review of your records or
reports or those of the company with which you traded emission credits.
(c) If a negative emission credit balance results from a
transaction, both the buyer and seller are liable, except in cases we
deem to involve fraud. See Sec. 1039.255(e) for cases involving fraud.
We may void the certificates of all engine families participating in a
trade that results in a manufacturer having a negative balance of
emission credits. See Sec. 1039.745.

Sec. 1039.725 What must I include in my application for certification?

(a) You must declare in your application for certification your
intent to use the provisions of this subpart for each engine family
that will be certified using the ABT program. You must also declare the
FELs you select for the engine family for each pollutant for which you
are using the ABT program. Your FELs must comply with the
specifications of subpart B of this part, including the FEL caps. FELs
must be expressed to the same number of decimal places as the
applicable standards.
(b) Include the following in your application for certification:
(1) A statement that, to the best of your belief, you will not have
a negative balance of emission credits for any averaging set when all
emission credits are calculated at the end of the year.
(2) Detailed calculations of projected emission credits (positive
or negative) based on projected production volumes. If your engine
family will generate positive emission credits, state specifically
where the emission credits will be applied (for example, to which
engine family they will be applied in averaging, whether they will be
traded, or whether they will be reserved for banking). If you have
projected negative emission credits for an engine family, state the
source of positive emission credits to offset the negative emission
credits. Describe whether the emission credits are actual or reserved
and whether they will come from averaging, banking, trading, or a
combination of these. Identify from which of your engine families or
from which manufacturer the emission credits will come.

Sec. 1039.730 What ABT reports must I send to EPA?

(a) If any of your engine families are certified using the ABT
provisions of this subpart, you must send an end-of-year report within
90 days after the end of the model year and a final report within 270
days after the end of the model year. We may waive the requirement to
send the end-of year report, as long as you send the final report on
time.
(b) Your end-of-year and final reports must include the following
information for each engine family participating in the ABT program:
(1) Engine-family designation.
(2) The emission standards that would otherwise apply to the engine
family.
(3) The FEL for each pollutant. If you changed an FEL during the
model year, identify each FEL you used and calculate the positive or
negative emission credits under each FEL. Also, describe how the
applicable FEL can be identified for each engine you produced. For
example, you might keep a list of engine identification numbers that
correspond with certain FEL values.

[[Page 39246]]

(4) The projected and actual production volumes for the model year
with a point of retail sale in the United States. If you changed an FEL
during the model year, identify the actual production volume associated
with each FEL.
(5) Maximum engine power for each engine configuration, and the
sales-weighted average engine power for the engine family.
(6) Useful life.
(7) Calculated positive or negative emission credits for the whole
engine family. Identify any emission credits that you traded, as
described in paragraph (d)(1) of this section.
(c) Your end-of-year and final reports must include the following
additional information:
(1) Show that your net balance of emission credits from all your
engine families in each averaging set in the applicable model year is
not negative.
(2) State whether you will reserve any emission credits for banking.
(3) State that the report's contents are accurate.
(d) If you trade emission credits, you must send us a report within
90 days after the transaction, as follows:
(1) As the seller, you must include the following information in
your report:
(i) The corporate names of the buyer and any brokers.
(ii) A copy of any contracts related to the trade.
(iii) The engine families that generated emission credits for the
trade, including the number of emission credits from each family.
(2) As the buyer, you must include the following information in
your report:
(i) The corporate names of the seller and any brokers.
(ii) A copy of any contracts related to the trade.
(iii) How you intend to use the emission credits, including the
number of emission credits you intend to apply to each engine family
(if known).
(e) Send your reports electronically to the Designated Compliance
Officer using an approved information format. If you want to use a
different format, send us a written request with justification for a
waiver.
(f) Correct errors in your end-of-year report or final report as
follows:
(1) You may correct any errors in your end-of-year report when you
prepare the final report, as long as you send us the final report by
the time it is due.
(2) If you or we determine within 270 days after the end of the
model year that errors mistakenly decrease your balance of emission
credits, you may correct the errors and recalculate the balance of
emission credits. You may not make these corrections for errors that
are determined more than 270 days after the end of the model year. If
you report a negative balance of emission credits, we may disallow
corrections under this paragraph (f)(2).
(3) If you or we determine anytime that errors mistakenly increase
your balance of emission credits, you must correct the errors and
recalculate the balance of emission credits.

Sec. 1039.735 What records must I keep?

(a) You must organize and maintain your records as described in
this section. We may review your records at any time.
(b) Keep the records required by this section for eight years after
the due date for the end-of-year report. You may use any appropriate
storage formats or media, including paper, microfilm, or computer diskettes.
(c) Keep a copy of the reports we require in Sec. 1039.725 and
Sec. 1039.730.
(d) Keep the following additional records for each engine you
produce that generates or uses emission credits under the ABT program:
(1) Engine family designation.
(2) Engine identification number.
(3) FEL and useful life.
(4) Maximum engine power.
(5) Build date and assembly plant.
(6) Purchaser and destination.
(e) We may require you to keep additional records or to send us
relevant information not required by this section.

Sec. 1039.740 What restrictions apply for using emission credits?

The following restrictions apply for using emission credits:
(a) Averaging sets. Emission credits may be exchanged only within
an averaging set. For Tier 4 engines, there are two averaging sets--one
for engines at or below 560 kW and another for engines above 560 kW.
(b) Emission credits from earlier tiers of standards. (1) For
purposes of ABT under this subpart, you may not use emission credits
generated from engines subject to emission standards under 40 CFR part
89, except as specified in Sec. 1039.102(d)(1) or the following table:

------------------------------------------------------------------------
And it was Then you may use
If the maximum power of the certified to the those banked
credit-generating engine is . . following credits for the
. standards under 40 following Tier 4
CFR part 89 . . . engines . . .
------------------------------------------------------------------------
(i) kW < 19.................... Tier 2............ kW < 19
(ii) 19 <= kW < 37............. Tier 2............ kW >= 19
(iii) 37 <= kW <= 560.......... Tier 3............ kW >= 19
(iv) kW > 560.................. Tier 2............ kW >= 19
------------------------------------------------------------------------

(2) Emission credits generated from marine engines certified under
the provisions of 40 CFR part 89 may not be used under this part.
(3) See 40 CFR part 89 for other restrictions that may apply for
using emission credits generated under that part.
(c) NOX and NOX+NMHC emission credits. You may use NO_X
emission credits without adjustment to show compliance with
NO_X+NMHC standards. You may use NO_X+NMHC emission
credits to show compliance with NO_X standards, but you must
adjust the NO_X+NMHC emission credits downward by twenty
percent when you use them, as shown in the following equation:

NO_X emission credits = (0.8) x (NO_X+NMHC
emission credits).

(d) Other restrictions. Other sections of this part specify
additional restrictions for using emission credits under certain
special provisions.

Sec. 1039.745 What can happen if I do not comply with the provisions
of this subpart?

(a) For each engine family participating in the ABT program, the
certificate of conformity is conditional upon full compliance with the
provisions of this subpart during and after the model year. You are
responsible to establish to our satisfaction that you fully comply with
applicable requirements. We may void the certificate of conformity for an

[[Page 39247]]

engine family if you fail to comply with any provisions of this
subpart.
(b) You may certify your engine family to an FEL above an
applicable standard based on a projection that you will have enough
emission credits to offset the deficit for the engine family. However,
we may void the certificate of conformity if you cannot show in your
final report that you have enough actual emission credits to offset a
deficit for any pollutant in an engine family.
(c) We may void the certificate of conformity for an engine family
if you fail to keep records, send reports, or give us information we
request.
(d) You may ask for a hearing if we void your certificate under
this section (see Sec. 1039.820).

Subpart I--Definitions and Other Reference Information

Sec. 1039.801 What definitions apply to this part?

The following definitions apply to this part. The definitions apply
to all subparts unless we note otherwise. All undefined terms have the
meaning the Act gives to them. The definitions follow:
Act means the Clean Air Act, as amended, 42 U.S.C. 7401-7671q.
Adjustable parameter means any device, system, or element of design
that someone can adjust (including those which are difficult to access)
and that, if adjusted, may affect emissions or engine performance
during emission testing or normal in-use operation. This includes, but
is not limited to, parameters related to injection timing and fueling
rate. You may ask us to exclude a parameter that is difficult to access
if it cannot be adjusted to affect emissions without significantly
degrading engine performance, or if you otherwise show us that it will
not be adjusted in a way that affects emissions during in-use
operation.
Aftertreatment means relating to a catalytic converter, particulate
filter, or any other system, component, or technology mounted
downstream of the exhaust valve (or exhaust port) whose design function
is to reduce emissions in the engine exhaust before it is exhausted to
the environment. Exhaust-gas recirculation (EGR) is not aftertreatment.
Aircraft means any vehicle capable of sustained air travel above
treetop heights.
Auxiliary emission-control device means any element of design that
senses temperature, motive speed, engine RPM, transmission gear, or any
other parameter for the purpose of activating, modulating, delaying, or
deactivating the operation of any part of the emission-control system.
Brake power means the usable power output of the engine, not
including power required to fuel, lubricate, heat, or cool the engine
or to operate aftertreatment devices.
Calibration means the set of specifications and tolerances specific
to a particular design, version, or application of a component or
assembly capable of functionally describing its operation over its
working range.
Certification means obtaining a certificate of conformity for an
engine family that complies with the emission standards and
requirements in this part.
Certified emission level means the highest deteriorated emission
level in an engine family for a given pollutant from either transient
or steady-state testing.
Compression-ignition means relating to a type of reciprocating,
internal-combustion engine that is not a spark-ignition engine.
Constant-speed engine means an engine whose certification is
limited to constant-speed operation. Engines whose constant-speed
governor function is removed or disabled are no longer constant-speed
engines.
Constant-speed operation means engine operation with a governor
that controls engine speed to a reference speed. There are two kinds of
constant-speed governors. An isochronous governor changes reference
speed temporarily during a load change, then returns it to the original
reference speed after the engine stabilizes. Isochronous governors
typically allow speed changes up to 1.0 percent. A speed-droop governor
has a fixed reference speed at zero load and allows the reference speed
to decrease as load increases. With speed-droop governors, speed
typically decreases 3 to 10 percent below the reference speed at zero
load, such that the minimum reference speed occurs near the engine's
point of maximum power.
Crankcase emissions means airborne substances emitted to the
atmosphere from any part of the engine crankcase's ventilation or
lubrication systems. The crankcase is the housing for the crankshaft
and other related internal parts.
Critical emission-related component means any of the following
components:
(1) Electronic control units, aftertreatment devices, fuel-metering
components, EGR-system components, crankcase-ventilation valves, all
components related to charge-air compression and cooling, and all
sensors and actuators associated with any of these components.
(2) Any other component whose primary purpose is to reduce emissions.
Designated Compliance Officer means the Manager, Engine Programs
Group (6405-J), U.S. Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460.
Designated Enforcement Officer means the Director, Air Enforcement
Division (2242A), U.S. Environmental Protection Agency, 1200
Pennsylvania Ave., NW.,Washington, DC 20460.
Deteriorated emission level means the emission level that results
from applying the appropriate deterioration factor to the official
emission result of the emission-data engine.
Deterioration factor means the relationship between emissions at
the end of useful life and emissions at the low-hour test point,
expressed in one of the following ways:
(1) For multiplicative deterioration factors, the ratio of
emissions at the end of useful life to emissions at the low-hour test
point.
(2) For additive deterioration factors, the difference between
emissions at the end of useful life and emissions at the low-hour test
point.
Discrete-mode means relating to the discrete-mode type of steady-
state test described in Sec. 1039.505.
Emission-control system means any device, system, or element of
design that controls or reduces the regulated emissions from an engine.
Emission-data engine means an engine that is tested for
certification. This includes engines tested to establish deterioration
factors.
Emission-related maintenance means maintenance that substantially
affects emissions or is likely to substantially affect emission
deterioration.
Engine configuration means a unique combination of engine hardware
and calibration within an engine family. Engines within a single engine
configuration differ only with respect to normal production
variability.
Engine family has the meaning given in Sec. 1039.230.
Engine manufacturer means the manufacturer of the engine. See the
definition of ``manufacturer'' in this section.
Engine used in a locomotive means either an engine placed in the
locomotive to move other equipment, freight, or passenger traffic; or
an engine mounted on the locomotive to provide auxiliary power.
Equipment manufacturer means a manufacturer of nonroad equipment.
All nonroad equipment manufacturing entities under the control of the
same person are considered to be a single nonroad equipment
manufacturer.

[[Page 39248]]

(Note: In Sec. 1039.626, the term ``equipment manufacturer'' has a
narrower meaning, which applies only to that section.)
Excluded means relating to an engine that either:
(1) Has been determined not to be a nonroad engine, as specified in
40 CFR 1068.30; or
(2) Is a nonroad engine that, according to Sec. 1039.5, is not
subject to this part 1039.
Exempted means relating to an engine that is not required to meet
otherwise applicable standards. Exempted engines must conform to
regulatory conditions specified for an exemption in this part 1039 or
in 40 CFR part 1068. Exempted engines are deemed to be ``subject to''
the standards of this part, even though they are not required to comply
with the otherwise applicable requirements. Engines exempted with
respect to a certain tier of standards may be required to comply with
an earlier tier of standards as a condition of the exemption; for
example, engines exempted with respect to Tier 4 standards may be
required to comply with Tier 3 standards.
Exhaust-gas recirculation means a technology that reduces emissions
by routing exhaust gases that had been exhausted from the combustion
chamber(s) back into the engine to be mixed with incoming air before or
during combustion. The use of valve timing to increase the amount of
residual exhaust gas in the combustion chamber(s) that is mixed with
incoming air before or during combustion is not considered exhaust-gas
recirculation for the purposes of this part.
Family emission limit (FEL) means an emission level declared by the
manufacturer to serve in place of an otherwise applicable emission
standard under the ABT program in subpart H of this part. The family
emission limit must be expressed to the same number of decimal places
as the emission standard it replaces. The family emission limit serves
as the emission standard for the engine family with respect to all
required testing.
Fuel system means all components involved in transporting,
metering, and mixing the fuel from the fuel tank to the combustion
chamber(s), including the fuel tank, fuel tank cap, fuel pump, fuel
filters, fuel lines, carburetor or fuel-injection components, and all
fuel-system vents.
Fuel type means a general category of fuels such as diesel fuel or
natural gas. There can be multiple grades within a single fuel type,
such as high-sulfur or low-sulfur diesel fuel.
Generator-set engine means an engine used primarily to operate an
electrical generator or alternator to produce electric power for other
applications.
Good engineering judgment means judgments made consistent with
generally accepted scientific and engineering principles and all
available relevant information. See 40 CFR 1068.5 for the
administrative process we use to evaluate good engineering judgment.
High-sulfur diesel fuel means one of the following:
(1) For in-use fuels, high-sulfur diesel fuel means a diesel fuel
with a maximum sulfur concentration greater than 500 parts per million.
(2) For testing, high-sulfur diesel fuel has the meaning we give in
40 CFR part 1065.
Hydrocarbon (HC) means the hydrocarbon group on which the emission
standards are based for each fuel type. For alcohol-fueled engines, HC
means total hydrocarbon equivalent (THCE). For all other engines, HC
means nonmethane hydrocarbon (NMHC).
Identification number means a unique specification (for example, a
model number/serial number combination) that allows someone to
distinguish a particular engine from other similar engines.
Intermediate test speed has the meaning we give in 40 CFR 1065.515.
Low-hour means relating to an engine with stabilized emissions and
represents the undeteriorated emission level. This would generally
involve less than 300 hours of operation.
Low-sulfur diesel fuel means one of the following:
(1) For in-use fuels, low-sulfur diesel fuel means a diesel fuel
with a maximum sulfur concentration of 500 parts per million.
(2) For testing, low-sulfur diesel fuel has the meaning we give in
40 CFR part 1065.
Manufacture means the physical and engineering process of
designing, constructing, and assembling a nonroad engine or a piece of
nonroad equipment.
Manufacturer has the meaning given in section 216(1) of the Act. In
general, this term includes any person who manufactures an engine,
vehicle, or piece of equipment for sale in the United States or
otherwise introduces a new nonroad engine into commerce in the United
States. This includes importers who import engines, equipment, or
vehicles for resale. (Note: In Sec. 1039.626, the term ``equipment
manufacturer'' has a narrower meaning, which applies only to that section.)
Marine engine means a nonroad engine that someone installs or
intends to install on a marine vessel. This does not include portable
auxiliary engines for which the fueling, cooling and exhaust systems
are not integral parts of the vessel. There are two kinds of marine
engines:
(1) Propulsion marine engine means a marine engine that moves a
vessel through the water or directs the vessel's movement.
(2) Auxiliary marine engine means a marine engine not used for
propulsion.
Marine vessel has the meaning given in 1 U.S.C. 3, which generally
includes all nonroad equipment used as a means of transportation on
water.
Maximum engine power has the meaning given in Sec. 1039.140. Note
that Sec. 1039.230 generally disallows grouping engines from different
power categories in the same engine family.
Maximum test speed has the meaning we give in 40 CFR 1065.515.
Maximum test torque has the meaning we give in 40 CFR 1065.1001.
Model year means one of the following things:
(1) For freshly manufactured equipment and engines (see definition
of ``new nonroad engine,'' paragraph (1)), model year means one of the
following:
(i) Calendar year.
(ii) Your annual new model production period if it is different
than the calendar year. This must include January 1 of the calendar
year for which the model year is named. It may not begin before January
2 of the previous calendar year and it must end by December 31 of the
named calendar year.
(2) For an engine that is converted to a nonroad engine after being
placed into service as a motor-vehicle engine or a stationary engine,
model year means the calendar year in which the engine was originally
produced (see definition of ``new nonroad engine,'' paragraph (2)).
(3) For a nonroad engine excluded under Sec. 1039.5 that is later
converted to operate in an application that is not excluded, model year
means the calendar year in which the engine was originally produced
(see definition of ``new nonroad engine,'' paragraph (3)).
(4) For engines that are not freshly manufactured but are installed
in new nonroad equipment, model year means the calendar year in which
the engine is installed in the new nonroad equipment (see definition of
``new nonroad engine,'' paragraph (4)).
(5) For imported engines:
(i) For imported engines described in paragraph (5)(i) of the
definition of ``new nonroad engine,'' model year has the meaning given
in paragraphs (1) through (4) of this definition.
(ii) For imported engines described in paragraph (5)(ii) of the
definition of

[[Page 39249]]

``new nonroad engine,'' model year has the meaning given in 40 CFR
89.602 for independent commercial importers.
Motor vehicle has the meaning we give in 40 CFR 85.1703(a). In
general, motor vehicle means any vehicle that EPA deems to be capable
of safe and practical use on streets or highways.
New nonroad engine means any of the following things:
(1) A freshly manufactured nonroad engine for which the ultimate
purchaser has never received the equitable or legal title. This kind of
engine might commonly be thought of as ``brand new.'' In the case of
this paragraph (1), the engine becomes new when it is fully assembled
for the first time. The engine is no longer new when the ultimate
purchaser receives the title or the product is placed into service,
whichever comes first.
(2) An engine originally manufactured as a motor-vehicle engine or
a stationary engine that is later intended to be used in a piece of
nonroad equipment. In this case, the engine is no longer a motor-
vehicle or stationary engine and becomes a ``new nonroad engine''. The
engine is no longer new when it is placed into nonroad service.
(3) A nonroad engine that has been previously placed into service
in an application we exclude under Sec. 1039.5, where that engine is
installed in a piece of equipment that is covered by this part 1039.
The engine is no longer new when it is placed into nonroad service
covered by this part 1039. For example, this would apply to a marine
diesel engine that is no longer used in a marine vessel.
(4) An engine not covered by paragraphs (1) through (3) of this
definition that is intended to be installed in new nonroad equipment.
The engine is no longer new when the ultimate purchaser receives a
title for the equipment or the product is placed into service,
whichever comes first. This generally includes installation of used
engines in new equipment.
(5) An imported nonroad engine, subject to the following
provisions:
(i) An imported nonroad engine covered by a certificate of
conformity issued under this part that meets the criteria of one or
more of paragraphs (1) through (4) of this definition, where the
original engine manufacturer holds the certificate, is new as defined
by those applicable paragraphs.
(ii) An imported nonroad engine covered by a certificate of
conformity issued under this part, where someone other than the
original engine manufacturer holds the certificate (such as when the
engine is modified after its initial assembly), becomes new when it is
imported. It is no longer new when the ultimate purchaser receives a
title for the engine or it is placed into service, whichever comes first.
(iii) An imported nonroad engine that is not covered by a
certificate of conformity issued under this part at the time of
importation is new, but only if it was produced on or after the dates
shown in the following table. This addresses uncertified engines and
equipment initially placed into service that someone seeks to import
into the United States. Importation of this kind of new nonroad engine
(or equipment containing such an engine) is generally prohibited by 40
CFR part 1068.

Applicability of Emission Standards for Nonroad Diesel Engines
------------------------------------------------------------------------
Initial date of emission
Maximum engine power standards
------------------------------------------------------------------------
kW < 19............................... January 1, 2000.
19 < = kW < 37......................... January 1, 1999.
37 < = kW < 75......................... January 1, 1998.
75 < = kW < 130........................ January 1, 1997.
130 < = kW < = 560...................... January 1, 1996.
kW > 560.............................. January 1, 2000.
------------------------------------------------------------------------

New nonroad equipment means either of the following things:
(1) A nonroad piece of equipment for which the ultimate purchaser
has never received the equitable or legal title. The product is no
longer new when the ultimate purchaser receives this title or the
product is placed into service, whichever comes first.
(2) An imported nonroad piece of equipment with an engine not
covered by a certificate of conformity issued under this part at the
time of importation and manufactured after the requirements of this
part start to apply (see Sec. 1039.1).
Noncommercial fuel means a combustible product that is not marketed
as a commercial fuel, but is used as a fuel for nonroad engines. For
example, this includes methane that is produced and released from
landfills or oil wells, or similar unprocessed fuels that are not
intended to meet any otherwise applicable fuel specifications. See
Sec. 1039.615 for provisions related to engines designed to burn
noncommercial fuels.
Noncompliant engine means an engine that was originally covered by
a certificate of conformity, but is not in the certified configuration
or otherwise does not comply with the conditions of the certificate.
Nonconforming engine means an engine not covered by a certificate
of conformity that would otherwise be subject to emission standards.
Nonmethane hydrocarbon means the difference between the emitted
mass of total hydrocarbons and the emitted mass of methane.
Nonroad means relating to nonroad engines or equipment that
includes nonroad engines.
Nonroad engine has the meaning we give in 40 CFR 1068.30. In
general this means all internal-combustion engines except motor vehicle
engines, stationary engines, engines used solely for competition, or
engines used in aircraft. This part does not apply to all nonroad
engines (see Sec. 1039.5).
Nonroad equipment means a piece of equipment that is powered by one
or more nonroad engines.
Official emission result means the measured emission rate for an
emission-data engine on a given duty cycle before the application of
any deterioration factor, but after the applicability of regeneration
adjustment factors.
Opacity means the fraction of a beam of light, expressed in
percent, which fails to penetrate a plume of smoke, as measured by the
procedure specified in Sec. 1039.501.
Oxides of nitrogen has the meaning we give in 40 CFR part 1065.
Particulate trap means a filtering device that is designed to
physically trap all particulate matter above a certain size.
Piece of equipment means any vehicle, vessel, or other type of
equipment using engines to which this part applies.
Placed into service means put into initial use for its intended
purpose.
Point of first retail sale means the location at which the initial
retail sale occurs. This generally means an equipment dealership, but
may also include an engine seller or distributor in cases where loose
engines are sold to the general public for uses such as replacement
engines.
Power category means a specific range of maximum engine power that
defines the applicability of standards. For example, references to the
56-130 kW power category and 56 < = kW < 130 include all engines with
maximum engine power at or above 56 kW but below 130 kW. Also
references to 56-560 kW power categories or 56 < = kW < = 560 include all
engines with maximum engine power at or above 56 kW but at or below 560
kW, even though these engines span multiple power categories. Note that
in some cases, FEL caps are based on a subset of a power category. The
power categories are defined as follows:
(1) Engines with maximum power below 19 kW.

[[Page 39250]]

(2) Engines with maximum power at or above 19 kW but below 56 kW.
(3) Engines with maximum power at or above 56 kW but below 130 kW.
(4) Engines with maximum power at or above 130 kW but at or below
560 kW.
(5) Engines with maximum power above 560 kW.
Ramped-modal means relating to the ramped-modal type of steady-
state test described in Sec. 1039.505.
Rated speed means the maximum full-load governed speed for governed
engines and the speed of maximum power for ungoverned engines.
Revoke means to terminate the certificate or an exemption for an
engine family. If we revoke a certificate or exemption, you must apply
for a new certificate or exemption before continuing to introduce the
affected engines into commerce. This does not apply to engines you no
longer possess.
Round means to round numbers according to NIST Special Publication
811(incorporated by reference in Sec. 1039.810), unless otherwise
specified.
Scheduled maintenance means adjusting, repairing, removing,
disassembling, cleaning, or replacing components or systems
periodically to keep a part or system from failing, malfunctioning, or
wearing prematurely. It also may mean actions you expect are necessary
to correct an overt indication of failure or malfunction for which
periodic maintenance is not appropriate.
Small-volume engine manufacturer means a small business engine
manufacturer that had engine families certified to meet the
requirements of 40 CFR part 89 before 2003 (40 CFR part 89, revised as
of July 1, 2002), had annual U.S.-directed production of no more than
2,500 units in 2002 and all earlier calendar years, and has 1000 or
fewer employees. For manufacturers owned by a parent company, the
production limit applies to the production of the parent company and
all its subsidiaries and the employee limit applies to the total number
of employees of the parent company and all its subsidiaries.
Spark-ignition means relating to a gasoline-fueled engine or any
other type of engine with a spark plug (or other sparking device) and
with operating characteristics significantly similar to the theoretical
Otto combustion cycle. Spark-ignition engines usually use a throttle to
regulate intake air flow to control power during normal operation.
Steady-state means relating to emission tests in which engine speed
and load are held at a finite set of essentially constant values.
Steady-state tests are either discrete-mode tests or ramped-modal
tests.
Sulfur-sensitive technology means an emission-control technology
that experiences a significant drop in emission-control performance or
emission-system durability when an engine is operated on low-sulfur
fuel (i.e., fuel with a sulfur concentration of 300 to 500 ppm) as
compared to when it is operated on ultra low-sulfur fuel (i.e., fuel
with a sulfur concentration less than 15 ppm). Exhaust-gas
recirculation is not a sulfur-sensitive technology.
Suspend means to temporarily discontinue the certificate or an
exemption for an engine family. If we suspend a certificate, you may
not introduce into commerce engines from that engine family unless we
reinstate the certificate or approve a new one. If we suspend an
exemption, you may not introduce into commerce engines that were
previously covered by the exemption unless we reinstate the exemption.
Test engine means an engine in a test sample.
Test sample means the collection of engines selected from the
population of an engine family for emission testing. This may include
testing for certification, production-line testing, or in-use testing.
Tier 1 means relating to the Tier 1 emission standards, as shown in
40 CFR 89.112.
Tier 2 means relating to the Tier 2 emission standards, as shown in
40 CFR 89.112.
Tier 3 means relating to the Tier 3 emission standards, as shown in
40 CFR 89.112.
Tier 4 means relating to the Tier 4 emission standards, as shown in
Sec. 1039.101 and Sec. 1039.102. This includes the emission standards
that are shown in Sec. 1039.101 and Sec. 1039.102 that are unchanged
from Tier 2 or Tier 3 emission standards.
Total hydrocarbon means the combined mass of organic compounds
measured by the specified procedure for measuring total hydrocarbon,
expressed as a hydrocarbon with a hydrogen-to-carbon mass ratio of
1.85:1.
Total hydrocarbon equivalent means the sum of the carbon mass
contributions of non-oxygenated hydrocarbons, alcohols and aldehydes,
or other organic compounds that are measured separately as contained in
a gas sample, expressed as exhaust hydrocarbon from petroleum-fueled
engines. The hydrogen-to-carbon ratio of the equivalent hydrocarbon is
1.85:1.
Ultimate purchaser means, with respect to any new nonroad equipment
or new nonroad engine, the first person who in good faith purchases
such new nonroad equipment or new nonroad engine for purposes other
than resale.
Ultra low-sulfur diesel fuel means one of the following:
(1) For in-use fuels, ultra low-sulfur diesel fuel means a diesel
fuel with a maximum sulfur concentration of 15 parts per million.
(2) For testing, ultra low-sulfur diesel fuel has the meaning we
give in 40 CFR part 1065.
United States means the States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
Upcoming model year means for an engine family the model year after
the one currently in production.
U.S.-directed production volume means the number of engine units,
subject to the requirements of this part, produced by a manufacturer
for which the manufacturer has a reasonable assurance that sale was or
will be made to ultimate purchasers in the United States.
Useful life means the period during which the engine is designed to
properly function in terms of reliability and fuel consumption, without
being remanufactured, specified as a number of hours of operation or
calendar years, whichever comes first. It is the period during which a
new nonroad engine is required to comply with all applicable emission
standards. See Sec. 1039.101(g).
Variable-speed engine means an engine that is not a constant-speed
engine.
Void means to invalidate a certificate or an exemption ab initio.
If we void a certificate, all the engines introduced into commerce
under that engine family for that model year are considered
noncompliant, and you are liable for each engine introduced into
commerce under the certificate and may face civil or criminal penalties
or both. This applies equally to all engines in the engine family,
including engines introduced into commerce before we voided the
certificate. If we void an exemption, all the engines introduced into
commerce under that exemption are considered uncertified (or
nonconforming), and you are liable for each engine introduced into
commerce under the exemption and may face civil or criminal penalties
or both. You may not introduce into commerce any additional engines
using the voided exemption.
Volatile liquid fuel means any fuel other than diesel or biodiesel
that is a liquid at atmospheric pressure and has

[[Page 39251]]

a Reid Vapor Pressure higher than 2.0 pounds per square inch.
We (us, our) means the Administrator of the Environmental
Protection Agency and any authorized representatives.

Sec. 1039.805 What symbols, acronyms, and abbreviations does this
part use?

The following symbols, acronyms, and abbreviations apply to this
part:

CFR Code of Federal Regulations.
CO carbon monoxide.
CO2 carbon dioxide.
EPA Environmental Protection Agency.
FEL Family Emission Limit.
g/kW-hr grams per kilowatt-hour.
HC hydrocarbon.
kW kilowatts.
NIST National Institute of Standards and Technology.
NMHC nonmethane hydrocarbons.
NO_X oxides of nitrogen (NO and NO₂).
NTE not-to-exceed
PM particulate matter.
rpm revolutions per minute.
SAE Society of Automotive Engineers.
SEA Selective enforcement audit.
THC total hydrocarbon.
THCE total hydrocarbon equivalent.
TRU transportation refrigeration unit.
U.S.C. United States Code.

Sec. 1039.810 What materials does this part reference?

Documents listed in this section have been incorporated by
reference into this part. The Director of the Federal Register approved
the incorporation by reference as prescribed in 5 U.S.C. 552(a) and 1
CFR part 51. Anyone may inspect copies at the U.S. EPA, Air and
Radiation Docket and Information Center, 1301 Constitution Ave., NW.,
Room B102, EPA West Building, Washington, DC 20460 or at the National
Archives and Records Administration (NARA). For information on the
availability of this material at NARA, call 202-741-6030, or go to:
http://www.archives.gov/federal_register/code_of_federal_regulations/
ibr_locations.html.
(a) NIST material. Table 1 of this section lists material from the
National Institute of Standards and Technology that we have
incorporated by reference. The first column lists the number and name
of the material. The second column lists the sections of this part
where we reference it. Anyone may purchase copies of these materials
from the Government Printing Office, Washington, DC 20402 or download
them from the Internet at http://physics.nist.gov/Pubs/SP811/.
Table 1 follows:

Table 1 of Sec. 1039.810.--NIST Materials
------------------------------------------------------------------------
Part 1039
Document number and name reference
------------------------------------------------------------------------
NIST Special Publication 811, Guide for the Use of the 1039.801
International System of Units (SI), 1995 Edition.......
------------------------------------------------------------------------

(b) SAE material. Table 2 of this section lists material from the
Society of Automotive Engineering that we have incorporated by
reference. The first column lists the number and name of the material.
The second column lists the sections of this part where we reference
it. Anyone may purchase copies of these materials from the Society of
Automotive Engineers, 400 Commonwealth Drive, Warrendale, PA 15096.
Table 2 follows:

Table 2 of Sec. 1039.810.--SAE Materials
------------------------------------------------------------------------
Part 1039
Document number and name reference
------------------------------------------------------------------------
SAE J1930, Electrical/Electronic Systems Diagnostic 1039.135
Terms, Definitions, Abbreviations, and Acronyms,
revised May 1998.......................................
------------------------------------------------------------------------

Sec. 1039.815 What provisions apply to confidential information?

(a) Clearly show what you consider confidential by marking,
circling, bracketing, stamping, or some other method.
(b) We will store your confidential information as described in 40
CFR part 2. Also, we will disclose it only as specified in 40 CFR part
2. This applies both to any information you send us and to any
information we collect from inspections, audits, or other site visits.
(c) If you send us a second copy without the confidential
information, we will assume it contains nothing confidential whenever
we need to release information from it.
(d) If you send us information without claiming it is confidential,
we may make it available to the public without further notice to you,
as described in 40 CFR 2.204.

Sec. 1039.820 How do I request a hearing?

(a) You may request a hearing under certain circumstances, as
described elsewhere in this part. To do this, you must file a written
request, including a description of your objection and any supporting
data, within 30 days after we make a decision.
(b) For a hearing you request under the provisions of this part, we
will approve your request if we find that your request raises a
substantial factual issue.
(c) If we agree to hold a hearing, we will use the procedures
specified in 40 CFR part 1068, subpart G.

Appendix I to Part 1039--[Reserved]

Appendix II to Part 1039--Steady-State Duty Cycles for Constant-Speed
Engines

(a) The following duty cycle applies for discrete-mode testing
of constant-speed engines:

------------------------------------------------------------------------
Torque Weighting
D2 mode number Engine speed \1\ (percent) \2\ factors
------------------------------------------------------------------------
1..................... Maximum test 100 0.05
speed.
2..................... Maximum test 75 0.25
speed.
3..................... Maximum test 50 0.30
speed.
4..................... Maximum test 25 0.30
speed.
5..................... Maximum test 10 0.10
speed.
------------------------------------------------------------------------
\1\ Maximum test speed is defined in 40 CFR part 1065.
\2\ Except as noted in Sec. 1039.505, the percent torque is relative
to maximum test torque.

(b) The following duty cycle applies for ramped-modal testing of
constant-speed engines:

[[Page 39252]]

----------------------------------------------------------------------------------------------------------------
Time in
RMC mode mode Engine speed Torque (percent) 1 2
(seconds)
----------------------------------------------------------------------------------------------------------------
1a Steady-state..................... 53 Engine Governed........ 100.
1b Transition....................... 20 Engine Governed........ Linear transition.
2a Steady-state..................... 101 Engine Governed........ 10.
2b Transition....................... 20 Engine Governed........ Linear transition.
3a Steady-state..................... 277 Engine Governed........ 75.
3b Transition....................... 20 Engine Governed........ Linear transition.
4a Steady-state..................... 339 Engine Governed........ 25.
4b Transition....................... 20 Engine Governed........ Linear transition.
5 Steady-state...................... 350 Engine Governed........ 50.
----------------------------------------------------------------------------------------------------------------
\1\ The percent torque is relative to maximum test torque.
\2\ Advance from one mode to the next within a 20-second transition phase. During the transition phase, command
a linear progression from the torque setting of the current mode to the torque setting of the next mode.

Appendix III to Part 1039--Steady-State Duty Cycles for Variable-Speed
Engines With Maximum Power Below 19 kW

(a) The following duty cycle applies for discrete-mode testing
of variable-speed engines with maximum power below 19 kW:

------------------------------------------------------------------------
Observed
G2 mode number Engine speed \1\ torque Weighting
(percent) \2\ factors
------------------------------------------------------------------------
1..................... Maximum test 100 0.09
speed.
2..................... Maximum test 75 0.20
speed.
3..................... Maximum test 50 0.29
speed.
4..................... Maximum test 25 0.30
speed.
5..................... Maximum test 10 0.07
speed.
6..................... Idle............ 0 0.05
------------------------------------------------------------------------
\1\ Speed terms are defined in 40 CFR part 1065.
\2\ The percent torque is relative to the maximum torque at the
commanded test speed.

(b) The following duty cycle applies for ramped-modal testing of
variable-speed engines with maximum power below 19 kW:

----------------------------------------------------------------------------------------------------------------
Time in
RMC mode mode Engine speed 1 3 Torque (percent) 2 3
(seconds)
----------------------------------------------------------------------------------------------------------------
1a Steady-state..................... 41 Warm Idle.............. 0.
1b Transition....................... 20 Linear transition...... Linear transition.
2a Steady-state..................... 135 Maximum Test Speed..... 100.
2b Transition....................... 20 Maximum Test Speed..... Linear transition.
3a Steady-state..................... 112 Maximum Test Speed..... 10.
3b Transition....................... 20 Maximum Test Speed..... Linear transition.
4a Steady-state..................... 337 Maximum Test Speed..... 75.
4b Transition....................... 20 Maximum Test Speed..... Linear transition.
5a Steady-state..................... 518 Maximum Test Speed..... 25.
5b Transition....................... 20 Maximum Test Speed..... Linear transition.
6a Steady-state..................... 494 Maximum Test Speed..... 50.
6b Transition....................... 20 Linear transition...... Linear transition.
7 Steady-state...................... 43 Warm Idle.............. 0.
----------------------------------------------------------------------------------------------------------------
\1\ Speed terms are defined in 40 CFR part 1065.
\2\ The percent torque is relative to the maximum torque at the commanded engine speed.
\3\ Advance from one mode to the next within a 20-second transition phase. During the transition phase, command
a linear progression from the torque setting of the current mode to the torque setting of the next mode, and
simultaneously command a similar linear progression for engine speed if there is a change in speed setting.

Appendix IV to Part 1039--Steady-State Duty Cycles for Variable-Speed
Engines With Maximum Power at or Above 19 kW

(a) The following duty cycle applies for discrete-mode testing
of variable-speed engines with maximum power at or above 19 kW:

[[Page 39253]]

------------------------------------------------------------------------
Observed
C1 mode number Engine speed \1\ torque Weighting
(percent) \2\ factors
------------------------------------------------------------------------
1..................... Maximum test 100 0.15
speed.
2..................... Maximum test 75 0.15
speed.
3..................... Maximum test 50 0.15
speed.
4..................... Maximum test 10 0.10
speed.
5..................... Intermediate 100 0.10
test speed.
6..................... Intermediate 75 0.10
test speed.
7..................... Intermediate 50 0.10
test speed.
8..................... Idle............ 0 0.15
------------------------------------------------------------------------
\1\ Speed terms are defined in 40 CFR part 1065.
\2\ The percent torque is relative to the maximum torque at the
commanded test speed.

(b) The following duty cycle applies for ramped-modal testing of
variable-speed engines with maximum power at or above 19 kW:

----------------------------------------------------------------------------------------------------------------
Time in
RMC Mode mode Engine speed 1 3 Torque (percent) 2 3
(seconds)
----------------------------------------------------------------------------------------------------------------
1a Steady-state..................... 126 Warm Idle.............. 0.
1b Transition....................... 20 Linear Transition \2\.. Linear Transition.
2a Steady-state..................... 159 Intermediate Speed..... 100.
2b Transition....................... 20 Intermediate Speed..... Linear Transition.
3a Steady-state..................... 160 Intermediate Speed..... 50.
3b Transition....................... 20 Intermediate Speed..... Linear Transition.
4a Steady-state..................... 162 Intermediate Speed..... 75.
4b Transition....................... 20 Linear Transition...... Linear Transition.
5a Steady-state..................... 246 Maximum Test Speed..... 100.
5b Transition....................... 20 Maximum Test Speed..... Linear Transition.
6a Steady-state..................... 164 Maximum Test Speed..... 10.
6b Transition....................... 20 Maximum Test Speed..... Linear Transition.
7a Steady-state..................... 248 Maximum Test Speed..... 75.
7b Transition....................... 20 Maximum Test Speed..... Linear Transition.
8a Steady-state..................... 247 Maximum Test Speed..... 50.
8b Transition....................... 20 Linear Transition...... Linear Transition.
9 Steady-state...................... 128 Warm Idle.............. 0.
----------------------------------------------------------------------------------------------------------------
\1\ Speed terms are defined in 40 CFR part 1065.
\2\ The percent torque is relative to the maximum torque at the commanded engine speed.
\3\ Advance from one mode to the next within a 20-second transition phase. During the transition phase, command
a linear progression from the torque setting of the current mode to the torque setting of the next mode, and
simultaneously command a similar linear progression for engine speed if there is a change in speed setting.

Appendix V to Part 1039 [Reserved]

Appendix VI to Part 1039--Nonroad Compression-ignition Composite
Transient Cycle

------------------------------------------------------------------------
Normalized Normalized
Time(s) speed torque
(percent) (percent)
------------------------------------------------------------------------
1............................................. 0 0
2............................................. 0 0
3............................................. 0 0
4............................................. 0 0
5............................................. 0 0
6............................................. 0 0
7............................................. 0 0
8............................................. 0 0
9............................................. 0 0
10............................................ 0 0
11............................................ 0 0
12............................................ 0 0
13............................................ 0 0
14............................................ 0 0
15............................................ 0 0
16............................................ 0 0
17............................................ 0 0
18............................................ 0 0
19............................................ 0 0
20............................................ 0 0
21............................................ 0 0
22............................................ 0 0
23............................................ 0 0
24............................................ 1 3
25............................................ 1 3
26............................................ 1 3
27............................................ 1 3
28............................................ 1 3
29............................................ 1 3
30............................................ 1 6
31............................................ 1 6
32............................................ 2 1
33............................................ 4 13
34............................................ 7 18
35............................................ 9 21
36............................................ 17 20
37............................................ 33 42
38............................................ 57 46
39............................................ 44 33
40............................................ 31 0
41............................................ 22 27
42............................................ 33 43
43............................................ 80 49
44............................................ 105 47
45............................................ 98 70
46............................................ 104 36
47............................................ 104 65
48............................................ 96 71
49............................................ 101 62
50............................................ 102 51
51............................................ 102 50
52............................................ 102 46
53............................................ 102 41
54............................................ 102 31
55............................................ 89 2
56............................................ 82 0
57............................................ 47 1
58............................................ 23 1
59............................................ 1 3
60............................................ 1 8
61............................................ 1 3
62............................................ 1 5
63............................................ 1 6
64............................................ 1 4
65............................................ 1 4
66............................................ 0 6
67............................................ 1 4

[[Page 39254]]

68............................................ 9 21
69............................................ 25 56
70............................................ 64 26
71............................................ 60 31
72............................................ 63 20
73............................................ 62 24
74............................................ 64 8
75............................................ 58 44
76............................................ 65 10
77............................................ 65 12
78............................................ 68 23
79............................................ 69 30
80............................................ 71 30
81............................................ 74 15
82............................................ 71 23
83............................................ 73 20
84............................................ 73 21
85............................................ 73 19
86............................................ 70 33
87............................................ 70 34
88............................................ 65 47
89............................................ 66 47
90............................................ 64 53
91............................................ 65 45
92............................................ 66 38
93............................................ 67 49
94............................................ 69 39
95............................................ 69 39
96............................................ 66 42
97............................................ 71 29
98............................................ 75 29
99............................................ 72 23
100........................................... 74 22
101........................................... 75 24
102........................................... 73 30
103........................................... 74 24
104........................................... 77 6
105........................................... 76 12
106........................................... 74 39
107........................................... 72 30
108........................................... 75 22
109........................................... 78 64
110........................................... 102 34
111........................................... 103 28
112........................................... 103 28
113........................................... 103 19
114........................................... 103 32
115........................................... 104 25
116........................................... 103 38
117........................................... 103 39
118........................................... 103 34
119........................................... 102 44
120........................................... 103 38
121........................................... 102 43
122........................................... 103 34
123........................................... 102 41
124........................................... 103 44
125........................................... 103 37
126........................................... 103 27
127........................................... 104 13
128........................................... 104 30
129........................................... 104 19
130........................................... 103 28
131........................................... 104 40
132........................................... 104 32
133........................................... 101 63
134........................................... 102 54
135........................................... 102 52
136........................................... 102 51
137........................................... 103 40
138........................................... 104 34
139........................................... 102 36
140........................................... 104 44
141........................................... 103 44
142........................................... 104 33
143........................................... 102 27
144........................................... 103 26
145........................................... 79 53
146........................................... 51 37
147........................................... 24 23
148........................................... 13 33
149........................................... 19 55
150........................................... 45 30
151........................................... 34 7
152........................................... 14 4
153........................................... 8 16
154........................................... 15 6
155........................................... 39 47
156........................................... 39 4
157........................................... 35 26
158........................................... 27 38
159........................................... 43 40
160........................................... 14 23
161........................................... 10 10
162........................................... 15 33
163........................................... 35 72
164........................................... 60 39
165........................................... 55 31
166........................................... 47 30
167........................................... 16 7
168........................................... 0 6
169........................................... 0 8
170........................................... 0 8
171........................................... 0 2
172........................................... 2 17
173........................................... 10 28
174........................................... 28 31
175........................................... 33 30
176........................................... 36 0
177........................................... 19 10
178........................................... 1 18
179........................................... 0 16
180........................................... 1 3
181........................................... 1 4
182........................................... 1 5
183........................................... 1 6
184........................................... 1 5
185........................................... 1 3
186........................................... 1 4
187........................................... 1 4
188........................................... 1 6
189........................................... 8 18
190........................................... 20 51
191........................................... 49 19
192........................................... 41 13
193........................................... 31 16
194........................................... 28 21
195........................................... 21 17
196........................................... 31 21
197........................................... 21 8
198........................................... 0 14
199........................................... 0 12
200........................................... 3 8
201........................................... 3 22
202........................................... 12 20
203........................................... 14 20
204........................................... 16 17
205........................................... 20 18
206........................................... 27 34
207........................................... 32 33
208........................................... 41 31
209........................................... 43 31
210........................................... 37 33
211........................................... 26 18
212........................................... 18 29
213........................................... 14 51
214........................................... 13 11
215........................................... 12 9
216........................................... 15 33
217........................................... 20 25
218........................................... 25 17
219........................................... 31 29
220........................................... 36 66
221........................................... 66 40
222........................................... 50 13
223........................................... 16 24
224........................................... 26 50
225........................................... 64 23
226........................................... 81 20
227........................................... 83 11
228........................................... 79 23
229........................................... 76 31
230........................................... 68 24
231........................................... 59 33
232........................................... 59 3
233........................................... 25 7
234........................................... 21 10
235........................................... 20 19
236........................................... 4 10
237........................................... 5 7
238........................................... 4 5
239........................................... 4 6
240........................................... 4 6
241........................................... 4 5
242........................................... 7 5
243........................................... 16 28
244........................................... 28 25
245........................................... 52 53
246........................................... 50 8
247........................................... 26 40
248........................................... 48 29
249........................................... 54 39
250........................................... 60 42
251........................................... 48 18
252........................................... 54 51
253........................................... 88 90
254........................................... 103 84
255........................................... 103 85
256........................................... 102 84
257........................................... 58 66
258........................................... 64 97
259........................................... 56 80
260........................................... 51 67
261........................................... 52 96
262........................................... 63 62
263........................................... 71 6
264........................................... 33 16
265........................................... 47 45
266........................................... 43 56
267........................................... 42 27
268........................................... 42 64
269........................................... 75 74
270........................................... 68 96
271........................................... 86 61
272........................................... 66 0
273........................................... 37 0
274........................................... 45 37
275........................................... 68 96
276........................................... 80 97
277........................................... 92 96
278........................................... 90 97
279........................................... 82 96
280........................................... 94 81
281........................................... 90 85
282........................................... 96 65
283........................................... 70 96

[[Page 39255]]

284........................................... 55 95
285........................................... 70 96
286........................................... 79 96
287........................................... 81 71
288........................................... 71 60
289........................................... 92 65
290........................................... 82 63
291........................................... 61 47
292........................................... 52 37
293........................................... 24 0
294........................................... 20 7
295........................................... 39 48
296........................................... 39 54
297........................................... 63 58
298........................................... 53 31
299........................................... 51 24
300........................................... 48 40
301........................................... 39 0
302........................................... 35 18
303........................................... 36 16
304........................................... 29 17
305........................................... 28 21
306........................................... 31 15
307........................................... 31 10
308........................................... 43 19
309........................................... 49 63
310........................................... 78 61
311........................................... 78 46
312........................................... 66 65
313........................................... 78 97
314........................................... 84 63
315........................................... 57 26
316........................................... 36 22
317........................................... 20 34
318........................................... 19 8
319........................................... 9 10
320........................................... 5 5
321........................................... 7 11
322........................................... 15 15
323........................................... 12 9
324........................................... 13 27
325........................................... 15 28
326........................................... 16 28
327........................................... 16 31
328........................................... 15 20
329........................................... 17 0
330........................................... 20 34
331........................................... 21 25
332........................................... 20 0
333........................................... 23 25
334........................................... 30 58
335........................................... 63 96
336........................................... 83 60
337........................................... 61 0
338........................................... 26 0
339........................................... 29 44
340........................................... 68 97
341........................................... 80 97
342........................................... 88 97
343........................................... 99 88
344........................................... 102 86
345........................................... 100 82
346........................................... 74 79
347........................................... 57 79
348........................................... 76 97
349........................................... 84 97
350........................................... 86 97
351........................................... 81 98
352........................................... 83 83
353........................................... 65 96
354........................................... 93 72
355........................................... 63 60
356........................................... 72 49
357........................................... 56 27
358........................................... 29 0
359........................................... 18 13
360........................................... 25 11
361........................................... 28 24
362........................................... 34 53
363........................................... 65 83
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[[Continued on page 39257]]

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Control of Emissions of Air Pollution From Nonroad Diesel Engines and Fuel [pp. 39207-39256]

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