Electronic Code of Federal Regulations:

(a) This part applies to new nonroad spark-ignition engines and vehicles with gross power output at or below 19 kilowatts (kW) used for any purpose, unless we exclude them under paragraph (d) of this section.

(b) In certain cases, the regulations in this part 90 also apply to new engines with a gross power output above 19 kW that would otherwise be covered by 40 CFR part 1048 or 1051. See 40 CFR 1048.615 or 1051.145(a)(3) for provisions related to this allowance.

(c) In certain cases, the regulations in this part 90 apply to new engines below 50 cc used in motorcycles that are motor vehicles. See 40 CFR 86.447–2006 for provisions related to this allowance.

(d) The following nonroad engines and vehicles are not subject to the provisions of this part:

(1) Engines certified to meet the requirements of 40 CFR part 1051 ( e.g., engines used in snowmobiles). This part nevertheless applies to engines used in recreational vehicles if the manufacturer uses the provisions of 40 CFR 1051.145(a)(3) to exempt them from the requirements of 40 CFR part 1051. Compliance with the provisions of this part is a required condition of that exemption.

(3) Propulsion marine engines. See 40 CFR part 91. This part applies with respect to auxiliary marine engines.

(5) Engines certified to meet the requirements of 40 CFR part 1048, subject to the provisions of §90.913.

(7) Engines that are used exclusively in emergency and rescue equipment where no certified engines are available to power the equipment safely and practically, but not including generators, alternators, compressors or pumps used to provide remote power to a rescue tool. The equipment manufacturer bears the responsibility to ascertain on an annual basis and maintain documentation available to the Administrator that no appropriate certified engine is available from any source.

(e) Engines subject to the provisions of this subpart are also subject to the provisions found in subparts B through N of this part, except that Subparts C, H, M and N of this part apply only to Phase 2 engines as defined in this subpart.

(f) Certain text in this part is identified as pertaining to Phase 1 or Phase 2 engines. Such text pertains only to engines of the specified Phase. If no indication of Phase is given, the text pertains to all engines, regardless of Phase.

(g) This part also applies to engines under 50 cc used in motorcycles that are motor vehicles if the manufacturer uses the provisions of 40 CFR 86.447–2006 to meet the emission standards in this part instead of the requirements of 40 CFR part 86. In this case, compliance with the provisions of this part is a required condition of that exemption.

(h) This part applies as specified in 40 CFR part 60 subpart JJJJ, to spark-ignition engines subject to the standards of 40 CFR part 60, subpart JJJJ.

[67 FR 68339, Nov. 8, 2002, as amended at 69 FR 2441, Jan. 15, 2004; 70 FR 40448, July 13, 2005; 73 FR 3612, Jan. 18, 2008]

(a) This subpart applies to nonroad spark-ignition engines at or below 19 kW effective with the 1997 model year.

(b) Notwithstanding paragraph (a) of this section, this subpart applies to class V engines, as specified in §90.116(b)(5), that are preempted from regulation in California by section 209(e)(1)(A) of the Act, effective January 1, 1998.

(c) Notwithstanding paragraphs (a) and (b) of this section, engines used in recreational vehicles with engine rated speed greater than or equal to 5,000 rpm and with no installed speed governor are not subject to the provisions of this part through the 2005 model year. Starting with the 2006 model year, all the requirements of this part apply to engines used in these vehicles if they are not included in the scope of 40 CFR part 1051.

The following definitions apply to part 90. All terms not defined herein have the meaning given them in the Act.

Adjustable parameter means any device, system, or element of design which is physically capable of being adjusted (including those which are difficult to access) and which, if adjusted, may affect emissions or engine performance during emission testing or normal in-use operation.

Administrator means the Administrator of the Environmental Protection Agency or his or her authorized representative.

Aftertreatment means the passage of exhaust gases through a device or system such as a catalyst whose purpose is to chemically alter the gases prior to their release to the atmosphere.

Aircraft means any vehicle capable of sustained air travel above treetop heights.

Amphibious vehicle means a vehicle with wheels or tracks that is designed primarily for operation on land and secondarily for operation in water.

Auxiliary emission control device (AECD) means any element of design that senses temperature, vehicle 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.

Certification means, with respect to new nonroad engines, obtaining a certificate of conformity for an engine family complying with the nonroad engine emission standards and requirements specified in this part.

Eligible production or U.S. production means Phase 2 engines produced for purposes of being used in the United States, and includes any engine exported and subsequently imported in a new piece of equipment, but excludes any engine introduced into commerce, by itself or in a piece of equipment, for use in a state that has established its own emission requirements applicable to such engines pursuant to a waiver granted by EPA under section 209(e) of the Clean Air Act.

Emission control system means any device, system, or element of design which controls or reduces the emission of substances from an engine.

Engine manufacturer means any person engaged in the manufacturing or assembling of new nonroad engines or the importing of such engines for resale, or who acts for and is under the control of any such person in connection with the distribution of such engines. Engine manufacturer does not include any dealer with respect to new nonroad engines received by such person in commerce.

EPA enforcement officer means any officer, employee, or authorized representative of the U.S. Environmental Protection Agency so designated in writing by the Administrator (or by his or her designee).

Equipment manufacturer means a manufacturer of equipment using engines covered by the provisions of this Part who does not also manufacture engines covered by the provisions of this Part.

Exhaust emissions means matter emitted into the atmosphere from any opening downstream from the exhaust port of a nonroad engine.

Family Emission Limit or FEL means an emission level that is declared by the manufacturer to serve in lieu of an emission standard for the purposes of certification, production line testing, and Selective Enforcement Auditing for engines participating in the averaging, banking and trading program. A declared FEL will also serve in lieu of an emission standard where the manufacturer elects to perform voluntary in-use testing under this part. An FEL must be expressed to the same number of decimal places as the applicable emission standard.

Fuel system means all components involved in the transport, metering, and mixture of the fuel from the fuel tank to the combustion chamber(s) including the following: fuel tank, fuel tank cap, fuel pump, fuel lines, oil injection metering system, carburetor or fuel injection components, and all fuel system vents.

Good engineering judgment has the meaning given in 40 CFR 1068.30. See 40 CFR 1068.5 for the administrative process we use to evaluate good engineering judgment.

Gross power means the power measured at the crankshaft or its equivalent, the engine being equipped only with the standard accessories (such as oil pumps, coolant pumps, and so forth) necessary for its operation on the test bed.

Handheld equipment engine means a nonroad engine that meets the requirements specified in §90.103(a)(2)(I) through (v).

Hobby engines means engines used in reduced-scale models of vehicles that are not capable of transporting a person (for example, model airplanes).

Marine engine means a nonroad engine that is installed or intended to be installed on a marine vessel. This includes a portable auxiliary marine engine only if its fueling, cooling, or exhaust system is an integral part 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.

Marine vessel has the meaning given in 1 U.S.C. 3, except that it does not include amphibious vehicles. The definition in 1 U.S.C. 3 very broadly includes every craft capable of being used as a means of transportation on water.

Model year (MY) means the manufacturer's annual new model production period which includes January 1 of the calendar year, ends no later than December 31 of the calendar year, and does not begin earlier than January 2 of the previous calendar year. Where a manufacturer has no annual new model production period, model year means calendar year.

New, for the purposes of this part, means a nonroad engine or nonroad vehicle the equitable or legal title to which has never been transferred to an ultimate purchaser. Where the equitable or legal title to the engine or vehicle is not transferred to an ultimate purchaser until after the engine or vehicle is placed into service, then the engine or vehicle will no longer be new after it is placed into service. A nonroad engine or vehicle is placed into service when it is used for its functional purposes. With respect to imported nonroad engines or nonroad vehicles, the term “new” means an engine or vehicle that is not covered by a certificate of conformity issued under this part at the time of importation, and that is manufactured after the effective date of a regulation issued under this part which is applicable to such engine or vehicle (or which would be applicable to such engine or vehicle had it been manufactured for importation into the United States).

New Class I engine family means any group of engines that employ a design that is different from engine families that the engine manufacturer has previously certified, and does not include any engine family certified on the basis of carryover data or any engine family that differs from another engine family solely as a result of a running change.

(1) Except as discussed in paragraph (2) of this definition, any internal combustion engine:

(i) In or on a piece of equipment that is self-propelled or serves a dual purpose by both propelling itself and performing another function (such as garden tractors, off-highway mobile cranes, and bulldozers); or

(ii) In or on a piece of equipment that is intended to be propelled while performing its function (such as lawnmowers and string trimmers); or

(iii) That, by itself or in or on a piece of equipment, is portable or transportable, meaning designed to be and capable of being carried or moved from one location to another. Indicia of transportability include, but are not limited to, wheels, skids, carrying handles, dolly, trailer, or platform.

(i) The engine is used to propel a motor vehicle or a vehicle used solely for competition, or is subject to standards promulgated under section 202 of the Act; or

(ii) The engine is regulated by a federal New Source Performance Standard promulgated under section 111 of the Act; or

(iii) The engine otherwise included in paragraph (1)(iii) of this definition remains or will remain at a location for more than 12 consecutive months or a shorter period of time for an engine located at a seasonal source. A location is any site at a building, structure, facility, or installation. Any engine (or engines) that replaces an engine at a location and that is intended to perform the same or similar function as the engine replaced will be included in calculating the consecutive time period. An engine located at a seasonal source is an engine that remains at a seasonal source during the full annual operating period of the seasonal source. A seasonal source is a stationary source that remains in a single location on a permanent basis (i.e., at least two years) and that operates at that single location approximately three months (or more) each year. This paragraph does not apply to an engine after the engine is removed from the location.

Nonroad vehicle means a vehicle that is powered by a nonroad engine as defined in this section and that is not a motor vehicle or a vehicle used solely for competition. Nonroad vehicle also includes equipment that is powered by nonroad engines.

Nonroad vehicle manufacturer means any person engaged in the manufacturing or assembling of new nonroad vehicles or importing such vehicles for resale, or who acts for and is under the control of any such person in connection with the distribution of such vehicles. A nonroad vehicle manufacturer does not include any dealer with respect to new nonroad vehicles received by such person in commerce.

(1) For engine storage areas or facilities, all times during which personnel other than custodial personnel are at work in the vicinity of the storage area or facility and have access to it.

(2) For all other areas or facilities, all times during which an assembly line is in operation or all times during which testing, maintenance, service accumulation, production or compilation of records, or any other procedure or activity related to certification testing, to translation of designs from the test stage to the production stage, or to engine manufacture or assembly is being carried out in a facility.

Overhead valve engine means an otto-cycle, four stroke engine in which the intake and exhaust valves are located above the combustion chamber within the cylinder head. Such engines are sometimes referred to as “valve-in-head” engines.

Phase 1 engine means any handheld or nonhandheld engine, that was produced under a certificate of conformity issued under the regulations in this part to the standard levels defined for Phase 1.

Phase 2 engine means any handheld and nonhandheld engine that was produced under a certificate of conformity under the regulations in this part to the standards defined for Phase 2 engines.

Presentation of credentials means the display of the document designating a person as an EPA enforcement officer or EPA authorized representative.

Recreational means, for purposes of this part, relating to a vehicle intended by the vehicle manufacturer to be operated primarily for pleasure.

Round, rounded or rounding means, unless otherwise specified, that numbers will be rounded according to ASTM-E29–93a, which is incorporated by reference in this part pursuant to §90.7.

Scheduled maintenance means any adjustment, repair, removal, disassembly, cleaning, or replacement of components or systems required by the manufacturer to be performed on a periodic basis to prevent part failure or vehicle or engine malfunction, or those actions anticipated as necessary to correct an overt indication of malfunction or failure for which periodic maintenance is not appropriate.

Side valve engine means an otto-cycle, four stroke engine in which the intake and exhaust valves are located to the side of the cylinder, not within the cylinder head. Such engines are sometimes referred to as “L-head” engines.

Small volume engine family means any handheld engine family or any nonhandheld engine family whose eligible production in a given model year are projected at the time of certification to be no more than 5,000 engines.

Small volume engine manufacturer means, for nonhandheld engines, any engine manufacturer whose total eligible production of nonhandheld engines are projected at the time of certification of a given model year to be no more than 10,000 nonhandheld engines. For handheld engines, the term small volume engine manufacturer means any engine manufacturer whose total eligible production of handheld engines are projected at the time of certification of a given model year to be no more than 25,000 handheld engines.

Small volume equipment manufacturer means, for nonhandheld equipment, any equipment manufacturer whose production of nonhandheld equipment subject to regulation under this part or powered by engines regulated under this part, does not exceed 5,000 pieces for a given model year or annual production period excluding that equipment intended for introduction into commerce for use in a state that has established its own emission requirements applicable to such equipment or engines in such equipment, pursuant to a waiver granted by EPA under section 209(e) of the Clean Air Act. For handheld equipment, the term small volume equipment manufacturer has the same meaning except that it is limited to 25,000 pieces of handheld equipment rather than 5,000 pieces of nonhandheld equipment.

Small volume equipment model means, for nonhandheld equipment, any unique model of equipment whose production subject to regulations under this part or powered by engines regulated under this part, does not exceed 500 pieces for a given model year or annual production period excluding that equipment intended for introduction into commerce for use in a state that has established its own emission requirements applicable to such equipment or engines in such equipment, pursuant to a waiver granted by EPA under section 209(e) of the Clean Air Act. For handheld equipment, the term small volume equipment model has the same meaning except that it is limited to 5,000 pieces of handheld equipment, rather than 500 pieces of nonhandheld equipment.

Test engine means the engine or group of engines that a manufacturer uses during certification to determine compliance with emission standards.

Ultimate purchaser means, with respect to any new nonroad engine or new nonroad vehicle, the first person who in good faith purchases such new nonroad engine or vehicle for purposes other than resale.

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.

Used solely for competition means exhibiting features that are not easily removed and that would render its use other than in competition unsafe, impractical, or highly unlikely.

Warranty period means the period of time the engine or part is covered by the warranty provisions.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15235, Mar. 30, 1999; 65 FR 24305, Apr. 25, 2000; 67 FR 68339, Nov. 8, 2002; 70 FR 40448, July 13, 2005]

(a) Any manufacturer may assert that some or all of the information submitted pursuant to this part is entitled to confidential treatment as provided by part 2, subpart B of this chapter.

(b) Any claim of confidentiality must accompany the information at the time it is submitted to EPA.

(c) To assert that information submitted pursuant to this subpart is confidential, a manufacturer must indicate clearly the items of information claimed confidential by marking, circling, bracketing, stamping, or otherwise specifying the confidential information. Furthermore, EPA requests, but does not require, that the submitter also provide a second copy of its submittal from which all confidential information has been deleted. If a need arises to publicly release nonconfidential information, EPA will assume that the submitter has accurately deleted the confidential information from this second copy.

(d) If a claim is made that some or all of the information submitted pursuant to this subpart is entitled to confidential treatment, the information covered by that confidentiality claim will be disclosed by the Administrator only to the extent and by means of the procedures set forth in part 2, subpart B of this chapter.

(e) Information provided without a claim of confidentiality at the time of submission may be made available to the public by EPA without further notice to the submitter, in accordance with §2.204(c)(2)(i)(A) of this chapter.

(a) Tables for each subpart appear in an appendix at the end of the subpart. Tables are numbered consecutively by order of appearance in the appendix. The table title will indicate the topic.

(b) Figures for each subpart appear in an appendix at the end of the subpart. Figures are numbered consecutively by order of appearance in the appendix. The figure title will indicate the topic.

(a) Incorporation by reference. The documents in paragraph (b) of this section have been incorporated by reference. The incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be inspected at U.S. EPA Air and Radiation Docket, room M–1500, 401 M St., SW., Washington D.C. 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.

(b) The following paragraphs and tables set forth the material that has been incorporated by reference in this part.

(1) ASTM material. The following table sets forth material from the American Society for Testing and Materials which has been incorporated by reference. The first column lists the number and name of the material. The second column lists the section(s) of this part, other than §90.7, in which the matter is referenced. The second column is presented for information only and may not be all inclusive. Copies of these materials may be obtained from American Society for Testing and Materials, 1916 Race St., Philadelphia, PA 19103.

Document number and name	40 CFR part 90 reference
ASTM D86–93:
Standard Test Method for Distillation of Petroleum Products	Appendix A to subpart D, Table 3.
ASTM D1319–89:
Standard Test Method for Hydrocarbon Types in Liquid Petroleum Products by Fluorescent Indicator Adsorption	Appendix A to subpart D, Table 3.
ASTM D2622–92:
Standard Test Method for Sulfur in Petroleum Products by X-ray Spectrometry	Appendix A to subpart D, Table 3.
ASTM D2699–92:
Standard Test Method for Knock Characteristics of Motor Fuels by the Research Method	Appendix A to subpart D, Table 3.
ASTM D2700–92:
Standard Test Method for Knock Characteristics of Motor and Aviation Fuels by the Motor Method	Appendix A to subpart D, Table 3.
ASTM D3231–89:
Standard Test Method for Phosphorus in Gasoline	Appendix A to subpart D, Table 3.
ASTM D3606–92:
Standard Test Method for Determination of Benzene and Toluene in Finished Motor and Aviation Gasoline by Gas Chromatography	Appendix A to subpart D, Table 3.
ASTM D5191–93a:
Standard Test Method for Vapor Pressure of Petroleum Products (Mini Method)	Appendix A to subpart D, Table 3.
ASTM E29–93a:
Standard Practice for Using Significant Digits in Test Data to Determine Conformance with Specifications	90.116; 90.509.

(2) SAE material. The following table sets forth material from the Society of Automotive Engineers which has been incorporated by reference. The first column lists the number and name of the material. The second column lists the section(s) of this part, other than §90.7, in which the matter is referenced. The second column is presented for information only and may not be all inclusive. Copies of these materials may be obtained from Society of Automotive Engineers International, 400 Commonwealth Dr., Warrendale, PA 15096–0001.

The requirements of subpart B are applicable to all nonroad engines and vehicles subject to the provisions of subpart A of part 90.

The definitions in subpart A of part 90 apply to this subpart. All terms not defined herein or in subpart A have the meaning given them in the Act. The following definitions also apply to this subpart.

Attitudinal control means the operator regulates either the horizontal or vertical position of the equipment, or both.

Carry means the operator completely bears the weight of the equipment, including the engine.

Support means that the operator holds the equipment in position so as to prevent it from falling, slipping or sinking. It is not necessary for the entire weight of the equipment to be borne by the operator.

(a) Exhaust emissions for new Phase 1 and Phase 2 nonroad spark ignition engines at or below 19 kilowatts (kW), shall not exceed the following levels. Throughout this part, NMHC+NO_Xstandards are applicable only to natural gas fueled engines at the option of the manufacturer, in lieu of HC+NO_Xstandards.

Table 2—Phase 2 Class I-A, Class I-B, and Class I Engine Exhaust Emission Standards

[grams per kilowatt-hour]

Engine class	HC+NO_X	NMHC+NO_X	CO	Effective date
I	16.1	14.8	610	August 1, 2007; in addition, any Class I engine family initially produced on or after August 1, 2003 must meet the Phase 2 Class I standards before they may be introduced into commerce.
I-A	50		610	2001 Model Year.
I-B	40	37	610	2001 Model Year.

TABLE 4—Phase 2 Handheld Exhaust Emission Standards by Model Year

[grams per kilowatt-hour]

Engine class	Emission requirement	Model year
Engine class	Emission requirement	2002	2003	2004	2005	2006	2007 and later
Class III	HC+NO_X	238	175	113	50	50	50
	CO	805	805	805	805	805	805
Class IV	HC+NO_X	196	148	99	50	50	50
	CO	805	805	805	805	805	805
Class V	HC+NO_X			143	119	96	72
	CO			603	603	603	603

(1) Each engine displacement class has a unique set of exhaust emission standards. Boundaries for each class are indicated in §90.116(b).

(2) Emission standards for classes III, IV, V may be used only if an engine meets at least one of the following requirements:

(i) The engine must be used in a piece of equipment that is carried by the operator throughout the performance of its intended function(s);

(ii) The engine must be used in a piece of equipment that must operate multipositionally, such as upside down or sideways, to complete its intended function(s);

(iii) The engine must be used in a piece of equipment for which the combined engine and equipment dry weight is under 14 kilograms, no more than two wheels are present on the equipment, and at least one of the following attributes is also present:

(A) The operator must alternately provide support or carry the equipment throughout the performance of its intended function(s);

(B) The operator must provide support or attitudinal control for the equipment throughout the performance of its intended function(s); and

(iv) The engine must be used to power one-person augers, with a combined engine and equipment dry weight under 20 kilograms;

(v) The engine must be used in a recreational application, with a combined total vehicle dry weight under 20 kilograms;

(vi) Where a piece of equipment otherwise meeting the requirements of paragraph (a)(2)(iii) or (a)(2)(iv) of this section exceeds the applicable weight limit, emission standards for class III, IV or V, as applicable, may still apply if the equipment exceeds the weight limit by no more than the extent necessary to allow for the incremental weight of a four stroke engine or the incremental weight of a two stroke engine having enhanced emission control acceptable to the Administrator. Any manufacturer utilizing this provision to exceed the subject weight limitations shall maintain and make available to the Administrator upon request, documentation to substantiate that the exceedance of either weight limitation is a direct result of application of a four stroke or enhanced two stroke engine having the same, less or very similar power to two stroke engines that could otherwise be used to power the equipment and remain within the weight limitations.

(3) Notwithstanding paragraph (a)(2) of this section, two stroke engines used to power lawnmowers or other nonhandheld equipment may meet Phase 1 Class III, IV or V standards and requirements, as appropriate, through model year 2002 subject to the provisions of §90.107(e), (f) and (h). Such engines shall not be included in any computations of Phase 2 averaging, banking, or trading credits or eligible production.

(4) Notwithstanding paragraph (a)(2) of this section, two-stroke engines used to power snowthrowers may meet class III, IV, or V standards.

(5) Notwithstanding paragraph (a)(2) of this section, engines used exclusively to power products which are used exclusively in wintertime, such as snowthrowers and ice augers, at the option of the engine manufacturer, need not certify to or comply with standards regulating emissions of HC, NO_X. HC+NO_Xor NMHC+NO_X. as applicable. If the manufacturer exercises the option to certify to standards regulating such emissions, such engines must meet such standards. If the engine is to be used in any equipment or vehicle other than an exclusively wintertime product such as a snowthrower or ice auger, it must be certified to the applicable standard regulating emissions of HC, NO_X. HC+NO_Xor NMHC+NO_Xas applicable.

(6) In lieu of certifying to the applicable Phase 2 standards, small volume engine manufacturers as defined in this part may, at their option, certify their engine families as Phase 1 engines until the 2010 model year for nonhandheld engine families excluding Class I-A and Class I-B engine families, until the 2008 model year for Class III and Class IV engine families, and until the 2010 model year for Class V engine families. Such engines shall not exceed the applicable Phase 1 standards and are excluded from the averaging, banking and trading program and any related credit calculations. Beginning with the 2010 model year for nonhandheld engine families, the 2008 model year for Class III and Class IV engine families, and the 2010 model year for Class V engine families, these engines must meet the applicable Phase 2 standards.

(7) In lieu of certifying to the applicable Phase 2 standards, manufacturers of small volume engine families, as defined in this part may, at their option, certify their small volume engine families as Phase 1 engines until the 2010 model year for nonhandheld engine families excluding Class I-A and Class I-B engine families, until the 2008 model year for Class III and Class IV engine families, and until the 2010 model year for Class V engine families. Such engines shall not exceed the applicable Phase 1 standards and are excluded from the averaging, banking and trading program and any related credit calculations. Beginning with the 2010 model year for nonhandheld engine families, the 2008 model year for Class III and Class IV engine families, and the 2010 model year for Class V engine families, these engines must meet the applicable Phase 2 standards.

(8) Notwithstanding the standards shown in Table 3 of this section, the HC+NO_X(NMHC+NO_X) standard for Phase 2 Class II side valve engine families with annual production of 1000 or less shall be 24.0 g/kW-hr (22.0 g/kW-hr) for model years 2010 and later. Engines produced subject to this provision may not exceed this standard and are excluded from the averaging, banking and trading program and any related credit calculations.

(b) Exhaust emissions will be measured using the procedures set forth in subpart E of this part.

[60 FR 34598, July 3, 1995, as amended at 61 FR 58300, Nov. 13, 1996; 62 FR 42643, Aug. 7, 1997; 64 FR 15236, Mar. 30, 1999; 65 FR 24305, Apr. 25, 2000; 67 FR 68340, Nov. 8, 2002]

Paragraphs (a) through (c) of this section apply to Phase 1 engines only. Paragraphs (d) through (h) of this section apply only to Phase 2 engines.

(a) If all test engines representing an engine family have emissions less than or equal to each emission standard in a given engine displacement class, that family complies with that class of emission standards.

(b) If any test engine representing an engine family has emissions greater than any one emission standard in a given engine displacement class, that family will be deemed not in compliance with that class of emission standards.

(c) If catalysts are used in an engine family, the engine manufacturer must affirm that catalyst durability has been confirmed on the basis of the evaluation procedure that is specified in subpart E of this part.

(d) The exhaust emission standards (FELs, where applicable) for Phase 2 engines set forth in this part apply to the emissions of the engines for their full useful lives as determined pursuant to §90.105.

(e) For all Phase 2 engines, if all test engines representing an engine family have emissions, when properly tested according to procedures in this part, less than or equal to each Phase 2 emission standard (FEL, where applicable) in a given engine class and given model year, when multiplicatively adjusted by the deterioration factor determined in this section, that family complies with that class of emission standards for purposes of certification. If any test engine representing an engine family has emissions adjusted multiplicatively by the deterioration factor determined in this section, greater than any one emission standard (FEL, where applicable) for a given displacement class, that family does not comply with that class of emission standards.

(f) Each engine manufacturer must comply with all provisions of the averaging, banking and trading program outlined in subpart C of this part for each engine family participating in that program.

(g)(1) Small volume engine manufacturers and small volume engine families may, at their option, take deterioration factors for HC+NO_X(NMHC+NO_X) and CO from Table 1 or Table 2 of this paragraph (g), or they may calculate deterioration factors for HC+NO_X(NMHC+NO_X) and CO according to the process described in paragraph (h) of this section. For technologies that are not addressed in Table 1 or Table 2 of this paragraph (g), the manufacturer may ask the Administrator to assign a deterioration factor prior to the time of certification. The provisions of this paragraph (g) do not apply to Class I-A and Class I-B engines.

Table 1: Nonhandheld Engine HC+NO_X(NMHC+NO_X) and CO Assigned Deterioration Factors for Small Volume Manufacturers and Small Volume Engine Families

Engine class	Side valve engines		Overhead valve engines		Engines with aftertreatment
Engine class	HC+NO_X (NMHC+NO_X)	CO	HC+NO_X (NMHC+NO_X)	CO	Engines with aftertreatment
Class I	2.1	1.1	1.5	1.1	Dfs must be calculated using the formula in §90.104(g)(4).
Class II	1.6	1.1	1.4	1.1

Table 2—Handheld Engine HC+NO_Xand CO Assigned Deterioration Factors for Small Volume Manufacturers and Small Volume Engine Families

Engine class	Two-stroke engines¹		Four-stroke engines		Engines with aftertreatment
Engine class	HC+NO_X	CO	HC+NO_X	CO	Engines with aftertreatment
Class III	1.1	1.1	1.5	1.1	Dfs must be calculated using the formula in §90.104(g)(4).
Class IV	1.1	1.1	1.5	1.1
Class V	1.1	1.1	1.5	1.1

¹Two-stroke technologies to which these assigned deterioration factors apply include conventional two-strokes, compression wave designs, and stratified scavenging designs.

(4) Formula for calculating deterioration factors for engines with aftertreatment:

EDF = deterioration factor for engines without catalyst as shown in Table 1 or Table 2 of this paragraph (g)

(h)(1) Manufacturers shall obtain an assigned df or calculate a df, as appropriate, for each regulated pollutant for all Phase 2 engine families. Such dfs shall be used for certification, production line testing, and Selective Enforcement Auditing.

(2) For engines not using assigned dfs from Table 1 or Table 2 of paragraph (g) of this section, dfs shall be determined as follows:

(i) On at least one test engine representing the configuration chosen to be the most likely to exceed HC+NO_X(NMHC+NO_X) emission standards, (FELs where applicable), and constructed to be representative of production engines pursuant to §90.117, conduct full Federal test procedure emission testing pursuant to the regulations of subpart E of this part at the number of hours representing stabilized emissions pursuant to §90.118. If more than one engine is tested, average the results and round to the same number of decimal places contained in the applicable standard, expressed to one additional significant figure;

(ii) Conduct such emission testing again following aging the engine. The aging procedure should be designed to allow the manufacturer to appropriately predict the in-use emission deterioration expected over the useful life of the engine, taking into account the type of wear and other deterioration mechanisms expected under typical consumer use which could affect emissions performance. If more than one engine is tested, average the results and round to the same number of decimal places contained in the applicable standard, expressed to one additional significant figure;

(iii) Divide the full useful life emissions (average emissions, if applicable) for each regulated pollutant by the stabilized emissions (average emissions, if applicable) and round to two significant figures. The resulting number shall be the df, unless it is less than 1.0, in which case the df shall be 1.0.

(iv) At the manufacturer's option additional emission test points can be scheduled between the stabilized emission test point and the full useful life test period. If intermediate tests are scheduled, the test points must be evenly spaced over the full useful life period (plus or minus 2 hours) and one such test point shall be at one-half of full useful life (plus or minus 2 hours). For each pollutant HC+NO_X(NMHC+NO_X) and CO, a line must be fitted to the data points treating the initial test as occurring at hour zero, and using the method of least-squares. The deterioration factor is the calculated emissions durability period divided by the calculated emissions at zero hours.

(3) EPA may reject a df if it has evidence that the df is not appropriate for that family within 30 days of receipt from the manufacturer. The manufacturer must retain actual emission test data to support its choice of df and furnish that data to the Administrator upon request. Manufacturers may request approval by the Administrator of alternate procedures for determining deterioration. Any submitted df not rejected by EPA within 30 days shall be deemed to have been approved.

(4) Calculated deterioration factors may cover families and model years in addition to the one upon which they were generated if the manufacturer submits a justification acceptable to the Administrator in advance of certification that the affected engine families can be reasonably expected to have similar emission deterioration characteristics.

(5) Engine families that undergo running changes need not generate a new df if the manufacturer submits a justification acceptable to the Administrator concurrent with the running change that the affected engine families can be reasonably expected to have similar emission deterioration characteristics.

[60 FR 34598, July 3, 1995, as amended by 64 FR 15237, Mar. 30, 1999; 65 FR 24306, Apr. 25, 2000]

(a) Manufacturers shall declare the applicable useful life category for each engine family at the time of certification as described in this section. Such category shall be the category which most closely approximates the expected useful lives of the equipment into which the engines are anticipated to be installed as determined by the engine manufacturer. Manufacturers shall retain data appropriate to support their choice of useful life category for each engine family. Such data shall be furnished to the Administrator upon request.

(1) For nonhandheld engines: Manufacturers shall select a useful life category from Table 1 of this section at the time of certification. Engines with gross power output greater than 19 kW that have an engine displacement less than or equal to one liter that optionally certify under this part as allowed in §90.1(a), must certify to a useful life period of 1,000 hours.

(3) For handheld engines: Manufacturers shall select a useful life category from Table 2 of this paragraph (a) at the time of certification.

(5) Data to support a manufacturer's choice of useful life category, for a given engine family, may include but are not limited to:

(i) Surveys of the life spans of the equipment in which the subject engines are installed;

(ii) Engineering evaluations of field aged engines to ascertain when engine performance deteriorates to the point where usefulness and/or reliability is impacted to a degree sufficient to necessitate overhaul or replacement;

(vi) Engineering evaluations of the durability, in hours, of specific engine technologies, engine materials or engine designs.

(a)(1) Except as provided in §90.2(b), every manufacturer of new engines produced during or after model year 1997 must obtain a certificate of conformity covering such engines; however, engines manufactured during an annual production period beginning prior to September 1, 1996 are not required to be certified.

(2) Except as required in paragraph (b)(3) of this section, Class II engines manufactured during an annual production period beginning prior to September 1, 2000 are not required to meet Phase 2 requirements.

(b)(1) The annual production period begins either when an engine family is first produced or on January 2 of the calendar year preceding the year for which the model year is designated, whichever date is later. The annual production period ends either when the last engine is produced or on December 31 of the calendar year for which the model year is named, whichever date is sooner.

(2) Notwithstanding paragraph (b)(1) of this section, annual production periods beginning prior to September 1, 1996 may not exceed 12 months in length.

(3) Manufacturers who commence an annual production period for a Class II engine family between January 1, 2000 and September 1, 2000 must meet Phase 2 requirements for that family only if that production period will exceed 12 months in length.

(c) Except as provided in paragraph (d) of this section, a certificate of conformity is deemed to cover the engines named in such certificate and produced during the annual production period, as defined in paragraph (b) of this section.

(d) Except as provided in paragraph (e) of this section, the certificate of conformity must be obtained from the Administrator prior to selling, offering for sale, introducing into commerce, or importing into the United States the new engine. Engines produced prior to the effective date of a certificate of conformity may also be covered by the certificate, once it is effective, if the following conditions are met:

(1) The engines conform in all respects to the engines described in the application for the certificate of conformity.

(2) The engines are not sold, offered for sale, introduced into commerce, or delivered for introduction into commerce prior to the effective date of the certificate of conformity.

(3) EPA is notified prior to the beginning of production when such production will start, and EPA is provided a full opportunity to inspect and/or test the engines during and after their production. EPA must have the opportunity to conduct SEA production line testing as if the vehicles had been produced after the effective date of the certificate.

(e) Engines that are certified by EPA prior to January 2, 1996 for model year 1997 may be delivered for introduction into commerce prior to January 2, 1996 once a certificate of conformity has been issued.

(f) Engines imported by an original equipment manufacturer after December 31 of the calendar year for which the model year is named are still covered by the certificate of conformity as long as the production of the engine was completed before December 31 of that year.

(a) For each engine family, the engine manufacturer must submit to the Administrator a completed application for a certificate of conformity.

(b) The application must be approved and signed by the authorized representative of the manufacturer.

(c) The application must be updated and corrected by amendment as provided in §90.122 to accurately reflect the manufacturer's production.

(d) Required content. Each application must include the following information:

(1) A description of the basic engine design including, but not limited to, the engine family specifications;

(2) An explanation of how the emission control system operates, including a detailed description of all emission control system components (Detailed component calibrations are not required to be included; they must be provided if requested, however.), each auxiliary emission control device (AECD), and all fuel system components to be installed on any production or test engine(s);

(3) Proposed test engine(s) selection and the rationale for the test engine(s) selection;

(5) The service accumulation period necessary to break in the test engine(s) and stabilize emission levels;

(6) A description of all adjustable operating parameters including the following:

(i) The nominal or recommended setting and the associated production tolerances;

(iv) Production tolerances of the limits or stops used to establish each physically adjustable range;

(v) Information relating to why the physical limits or stops used to establish the physically adjustable range of each parameter, or any other means used to inhibit adjustment, are effective in preventing adjustment of parameters to settings outside the manufacturer's intended physically adjustable ranges on in-use engines; and

(vi) Information relating to altitude kits to be certified, including: a description of the altitude kit; appropriate part numbers; the altitude ranges at which the kits must be installed on or removed from the engine for proper emissions and engine performance; statements to be included in the owner's manual for the engine/equipment combination (and other maintenance related literature) that: declare the altitude ranges at which the kit must be installed or removed; and state that the operation of the engine/equipment at an altitude that differs from that at which it was certified, for extended periods of time, may increase emissions; and a statement that an engine with the altitude kit installed will meet each emission standard throughout its useful life (the rationale for this assessment must be documented and retained by the manufacturer, and provided to the Administrator upon request);

(9) A statement that the test engine(s), as described in the manufacturer's application for certification, has been tested in accordance with the applicable test procedures, utilizing the fuels and equipment required under subparts D and E of this part, and that on the basis of such tests the engine(s) conforms to the requirements of this part;

(10) An unconditional statement certifying that all engines in the engine family comply with all requirements of this part and the Clean Air Act;

(i) Engine manufacturers participating in the averaging, banking and trading program as described in subpart C of this part shall declare the applicable Family Emission Limit (FEL) for HC+NO_X(NMHC+NO_X).

(12) A statement indicating whether the engine family contains only nonroad engines, only stationary engines, or both.

(e)(1) In addition to the information specified in paragraph (d) of this section, manufacturers of two-stroke lawnmower engines must submit with their application for a certificate of conformity:

(i) For model year 1997, information establishing the highest number of two-stroke lawnmower engines produced in a single annual production period from 1992 through 1994. This number will be known as the production baseline.

(ii) For model years 1998 through 2002, information documenting the previous year's production and projected production for the current year.

(2) In model year 1997, two-stroke lawnmower engine manufacturers may produce up to 100 percent of their production baseline established under paragraph (e)(1)(i) of this section.

(3) In model year 1998, two-stroke lawnmower engine manufacturers may produce up to 75 percent of their production baseline.

(4) From model years 1999 through 2002, two-stroke lawnmower engine manufacturers may produce up to 50 percent of their production baseline.

(5) In model year 2003, two-stroke lawnmower engine manufacturers must meet class I or II standards specified in §90.103(a). If in model year 2003 those standards have been superseded by Phase 2 standards, two-stroke lawnmower engine manufacturers must meet the Phase 2 standards that are equivalent to the class I or II standards.

(f) At the Administrator's request, the manufacturer must supply such additional information as may be required to evaluate the application including, but not limited to, projected nonroad engine production.

(g)(1) The Administrator may modify the information submission requirements of paragraph (d) of this section, provided that all of the information specified therein is maintained by the engine manufacturer as required by §90.121, and amended, updated, or corrected as necessary.

(2) For the purposes of this paragraph, §90.121(a)(1) includes all information specified in paragraph (d) of this section whether or not such information is actually submitted to the Administrator for any particular model year.

(3) The Administrator may review an engine manufacturer's records at any time. At the Administrator's discretion, this review may take place either at the manufacturer's facility or at another facility designated by the Administrator.

(h)(1) The Administrator may, upon receipt of a written request from an equipment manufacturer, accompanied by sufficient documentation, permit two stroke engines produced for nonhandheld equipment other than lawnmowers to meet the standards specified in §90.103(a)(3) under the schedule outlined in paragraph (e) of this section. The equipment manufacturer must demonstrate to the satisfaction of the Administrator that:

(i) Four stroke engines for such equipment are not available with suitable physical or performance characteristics; and

(ii) The equipment can not be converted to use four stroke engines without substantial redesign for which additional lead time is necessary to avoid economic hardship.

(2) The Administrator may waive the phase-in percentages of paragraphs (e)(3) and (e)(4) of this section for engines used in low volume nonhandheld equipment other than lawnmowers where the equipment manufacturer demonstrates to the satisfaction of the Administrator that compliance with the production cap is not economically feasible.

[60 FR 34598, July 3, 1995, as amended at 61 FR 20742, May 8, 1996; 62 FR 42643, Aug. 7, 1997; 64 FR 15238, Mar. 30, 1999; 65 FR 24307, Apr. 25, 2000; 73 FR 3612, Jan. 18, 2008]

(a) If, after a review of the manufacturer's submitted application, information obtained from any inspection, and such other information as the Administrator may require, the Administrator determines that the application is complete and that the engine family meets the requirements of this part and the Clean Air Act, the Administrator shall issue a certificate of conformity.

(b) The Administrator shall give a written explanation when certification is denied. The manufacturer may request a hearing on a denial. (See §90.124 for procedure.)

(c) For certificates issued for engine families included in the averaging, banking and trading program as described in subpart C of this part:

(1) Failure to comply with all applicable averaging, banking and trading provisions in this part will be considered to be a failure to comply with the terms and conditions upon which the certificate was issued, and the certificate may be determined to be void ab initio.

(2) The manufacturer shall bear the burden of establishing to the satisfaction of the Administrator that the conditions upon which the certificate was granted were satisfied or waived.

(d) The Administrator may, upon request by a manufacturer, waive any requirement of this part otherwise necessary for the issuance of a certificate. The Administrator may set such conditions in a certificate as he or she deems appropriate to assure that the waived requirements are either satisfied or are demonstrated, for the subject engines, to be inappropriate, irrelevant or met by the application of a different requirement under this chapter. The Administrator may indicate on such conditional certificates that failure to meet these conditions may result in suspension or revocation or the voiding ab initio of the certificate.

(b) For purposes of this section, “crankcase” means the housing for the crankshaft and other related internal parts.

(c) Notwithstanding paragraph (a) of this section, the Administrator will allow open crankcases for engines used exclusively to power snowthrowers based upon a manufacturer's demonstration that all applicable emission standards will be met by the engine for the combination of emissions from the crankcase, and exhaust emissions measured using the procedures in subpart E of this part. This demonstration may be made based upon best engineering judgment. Upon request of the Administrator, the manufacturer must provide an explanation of any procedure or methodology used to determine that the total CO emissions from the crankcase and the exhaust are below the applicable standard for CO.

(a) An engine may not be equipped with an emission control device, system, or element of design for the purpose of complying with emission standards if such device, system, or element of design will cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function.

(b) 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.

(b) For purposes of this section, “defeat device” means any device, system, or element of design which senses operation outside normal emission test conditions and reduces emission control effectiveness.

(1) Defeat device includes any auxiliary emission control device (AECD) that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal operation and use unless such conditions are included in the test procedure.

(2) Defeat device does not include such items which either operate only during engine starting or are necessary to protect the engine (or vehicle in which it is installed) against damage or accident during its operation.

(a) Engines equipped with adjustable parameters must comply with all requirements of this subpart for any specification within the physically available range.

(b) An operating parameter is not considered adjustable if it is permanently sealed by the manufacturer or otherwise not normally accessible using ordinary tools.

(c) The Administrator may require that adjustable parameters be set to any specification within the adjustable range during certification or a selective enforcement audit to determine compliance with the requirements of this subpart.

(a) This section applies only to Phase 1 engines. In-use testing provisions for Phase 2 engines are found in subpart M of this part. At the time of certification the engine manufacturer may propose which engine families should be included in an in-use test program. EPA will approve a manufacturer's test program if the selected engine families represent an adequate consideration of the elements listed in paragraphs (b) and (c) of this section.

(b) Number of engines to be tested. The number of engines to be tested by a manufacturer is determined by the following method:

(1) For an engine manufacturer with total projected annual production of more than 75,000 engines destined for the United States market for that model year, the minimum number of engines to be tested may be the lowest of the numbers determined in paragraph (b)(1)(i), (ii) or (iii) of this section:

(i) Divide the manufacturer's total projected annual production of small SI engines destined for the United States market for that model year by 50,000, and round to the nearest whole number;

(ii) Test five engines each from 25 percent of all engine families certified in that model year; and

(iii) Test three engines each from 50 percent of all engine families certified in that model year.

(2) An engine manufacturer with total projected annual production of 75,000 engines or less destined for the United States market for that model year may test a minimum of two engines.

(c) Criteria for selecting test engines. An engine manufacturer may select test engines from engine families utilizing the following criteria and in the order specified:

(1) Engine families using emission control technology which most likely will be used on Phase 2 engines;

(4) Different engine designs (such as sidevalve head versus overhead valve engines);

(5) Engine families using emission control technology specifically installed to achieve compliance with emission standards of this part;

(7) Engine families which meet the above criteria, but have not been included in prior model year in-use testing programs as required by these provisions.

(d) Collection of in-use engines. An engine manufacturer may procure in-use engines which have been operated for between half and three-quarters of the engine's advertised (or projected) useful life. All testing may be completed within three years from the date the certificate is first issued for an engine family undergoing in-use testing.

(1) Test engines may be procured from sources not associated with the engine manufacturer or vehicle manufacturer, except that with prior approval of the Administrator, an engine manufacturer with annual sales of less than 50,000 engines may obtain in-use engines associated with itself or its vehicle manufacturer.

(2) A test engine should have a maintenance history representative of actual in-use conditions.

(i) A manufacturer may question the end user regarding the accumulated usage, maintenance, operating conditions, and storage of the test engines.

(ii) Documents used in the procurement process may be maintained as required in §90.121.

(3) Maintenance and testing of test engines. (i) The manufacturer may perform minimal set-to-spec maintenance on a test engine. Maintenance may include only that which is listed in the owner's instructions for engines with the amount of service and age of the acquired test engine.

(ii) Documentation of all maintenance and adjustments may be maintained and retained as required by §90.121.

(5) If a selected in-use engine fails to comply with any applicable certification emission standard, the manufacturer may determine the reason for noncompliance. The manufacturer may report all determinations for noncompliance in its annual in-use test result report as described below.

(e) In-use test program reporting. The manufacturer may submit to the Administrator by January 30 of each calendar year all emission testing results generated from in-use testing. The following information may be reported for each test engine:

(f) The Administrator may approve and/or suggest modifications to a manufacturer's in-use testing program.

(a) The engine manufacturer must affix at the time of manufacture a permanent and legible label identifying each nonroad engine. The label must meet the following requirements:

(1) Be attached in such a manner that it cannot be removed without destroying or defacing the label;

(3) Be secured to an engine part necessary for normal engine operation and not normally requiring replacement during engine life;

(5) Be located so as to be readily visible to the average person after the engine is installed in the vehicle.

(b) If the nonroad vehicle obscures the label on the engine, the nonroad vehicle manufacturer must attach a supplemental label so that this label is readily visible to the average person. The supplemental label must:

(1) Be attached in such a manner that it cannot be removed without destroying or defacing the label;

(2) Be secured to a vehicle part necessary for normal operation and not normally requiring replacement during the vehicle life; and

(3) The statement, “This (specify vehicle or engine, as applicable) is certified to operate on (specify operating fuel(s));”

(4) Identification of the Exhaust Emission Control System (Abbreviations may be used and must conform to the nomenclature and abbreviations provided in the Society of Automotive Engineers procedure J1930, “Electrical/Electronic Systems Diagnostic Terms, Definitions, Abbreviations and Acronyms,” September 1991. This procedure has been incorporated by reference. See §90.7.);

(7) The statement “THIS ENGINE CONFORMS TO U.S. EPA REGS FOR [MODEL YEAR].”;

(10) Other information concerning proper maintenance and use or indicating compliance or noncompliance with other standards may be indicated on the label;

(11) For Phase 2 engines, the useful life category as determined by the manufacturer pursuant to §90.105. Such useful life category shall be shown by one of the following statements to be appended to the statement required under paragraph (c)(7) of this section:

(ii) “EMISSIONS COMPLIANCE PERIOD: CATEGORY [fill in C, B or A as indicated and appropriate from the tables in §90.105], REFER TO OWNER'S MANUAL FOR FURTHER INFORMATION”;

(d) If there is insufficient space on the engine (or on the vehicle where a supplemental label is required under paragraph (b) of this section) to accommodate a label including all the information required in paragraph (c) of this section, the manufacturer may delete or alter the label as indicated in this paragraph. The information deleted from the label must appear in the owner's manual.

(1) Exclude the information required in paragraphs (c)(3), (4), and (5) of this section. The fuel or lubricant may be specified elsewhere on the engine.

(2) Exclude the information required by paragraph (c)(6) of this section, if the date the engine was manufactured is stamped on the engine.

(e) The Administrator may, upon request, waive or modify the label content requirements of paragraphs (c) and (d) of this section, provided that the intent of such requirements is met.

(f) Manufacturers electing to use the labeling language of paragraph (c)(11)(ii) of this section must provide in the documents intended to be conveyed to the ultimate purchaser, the statement:

(1) For nonhandheld engines: The Emissions Compliance Period referred to on the Emissions Compliance label indicates the number of operating hours for which the engine has been shown to meet Federal emission requirements. For engines less than 66 cc, Category C=50 hours, B=125 hours, and A=300 hours. For engines equal to or greater than 66 cc but less than 225 cc displacement, Category C=125 hours, B=250 hours, and A=500 hours. For engines of 225 cc or more, Category C=250 hours, B=500 hours, and A=1000 hours.

(2) For handheld engines: The Emissions Compliance Period referred to on the Emissions Compliance label indicates the number of operating hours for which the engine has been shown to meet Federal emission requirements. Category C=50 hours, B=125 hours, and A=300 hours.

(3) The manufacturer must provide, in the same document as the statement in paragraph (f)(1) or (f)(2) of this section, a statement of the engine's displacement or an explanation of how to readily determine the engine's displacement. The Administrator may approve alternate language to the statement in paragraph (f)(1) or (f)(2) of this section, provided that the alternate language provides the ultimate purchaser with a clear description of the number of hours represented by each of the three letter categories for the subject engine's displacement.

(g) Stationary engines required by 40 CFR part 60, subpart JJJJ, to meet the requirements of this part 90 must meet the labeling requirements of 40 CFR 60.4242.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar. 30, 1999; 65 FR 24307, Apr. 25, 2000; 73 FR 3613, Jan. 18, 2008]

Upon the Administrator's request, the manufacturer must supply a reasonable number of production engines for testing and evaluation. These engines must be representative of typical production and supplied for testing at such time and place and for such reasonable periods as the Administrator may require.

(a) Engine displacement must be calculated using nominal engine values and rounded to the nearest whole cubic centimeter in accordance with ASTM E29–93a. This procedure has been incorporated by reference. See §90.7.

(2) Class I-B—nonhandheld equipment engines greater than or equal to 66 cc but less than 100 cc in displacement;

(3) Class I—nonhandheld equipment engines greater than or equal to 100 cc but less than 225 cc in displacement;

(4) Class II—nonhandheld equipment engines greater than or equal to 225 cc in displacement;

(6) Class IV—handheld equipment engines equal or greater than 20 cc but less than 50 cc in displacement, and

(7) Class V—handheld equipment engines equal to or greater than 50 cc in displacement.

(c) The manufacturer's product line will be divided into groupings of engine families as specified by paragraph (d) of this section.

(d) To be classed in the same engine family, engines must be identical in all of the following applicable respects:

(3) The cylinder configuration (inline, vee, opposed, bore spacings, and so forth);

(6) The location of valves, where applicable, with respect to the cylinder (e.g. side valves or overhead valves);

(e) At the manufacturer's option, engines identical in all the respects listed in paragraph (d) of this section may be further divided into different engine families if the Administrator determines that they may be expected to have different emission characteristics. This determination is based upon the consideration of features such as:

(3) The intake and exhaust timing method of actuation (poppet valve, reed valve, rotary valve, and so forth);

(f) Where engines are of a type which cannot be divided into engine families based upon the criteria listed in paragraph (d) of this section, the Administrator will establish families for those engines based upon the features most related to their emission characteristics.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar. 30, 1999; 65 FR 24308, Apr. 25, 2000]

(a) For Phase 1 engines, the manufacturer must select, from each engine family, a test engine that the manufacturer determines to be most likely to exceed the emission standard. For Phase 2 engines, the manufacturer must select, from each engine family, a test engine of a configuration that the manufacturer determines to be most likely to exceed the HC+NO_X(NMHC+NO_X) Family Emission Limit (FEL), or HC+NO_X(NMHC+NO_X) standard if no FEL is applicable.

(b) The test engine must be constructed to be representative of production engines.

(a)(1) The test engine must be operated with all emission control systems operating properly for a period sufficient to stabilize emissions.

(b) No maintenance, other than recommended lubrication and filter changes, may be performed during service accumulation without the Administrator's approval.

(c) Service accumulation is to be performed in a manner using good engineering judgment to ensure that emissions are representative of production engines.

(d) The manufacturer must maintain, and provide to the Administrator if requested, records stating the rationale for selecting a service accumulation period less than 12 hours and records describing the method used to accumulate hours on the test engine(s).

(e) For purposes of establishing whether Phase 2 engines comply with applicable exhaust emission standards or FELs, the test results for each regulated pollutant as measured pursuant to §90.119 shall be multiplied by the applicable df determined under §90.104 (g) or (h). The product of the two numbers shall be rounded to the same number of decimal places contained in the applicable standard, and compared against the applicable standard or FEL, as appropriate.

[60 FR 34598, July 3, 1995, as amended at 61 FR 20742, May 8, 1996; 64 FR 15239, Mar. 30, 1999]

(a) Manufacturer testing. The manufacturer must test the test engine using the specified test procedures and appropriate test cycle. All test results must be reported to the Administrator.

(i) Class I and II engines must use the test cycle that is appropriate for their application. Engines that operate only at intermediate speed must use Test Cycle A, which is described in table 2 of appendix A to subpart E of this part. Engines that operate only at rated speed must use Test Cycle B, which is described in table 2 of appendix A to subpart E of this part. If an engine family includes engines used in both rated-speed and intermediate-speed applications, the manufacturer must select the duty cycle that will result in worst-case emission results for certification. For any testing after certification, the engine must be tested using the most appropriate test cycle based on the engine's installed governor.

(ii) Class I-A, III, IV, and V engines must use Test Cycle C described in subpart E of this part.

(b) Administrator testing. (1) The Administrator may require that any one or more of the test engines be submitted to the Administrator, at such place or places as the Administrator may designate, for the purposes of conducting emission tests. The Administrator may specify that testing will be conducted at the manufacturer's facility, in which case instrumentation and equipment specified by the Administrator must be made available by the manufacturer for test operations. Any testing conducted at a manufacturer's facility must be scheduled by the manufacturer as promptly as possible.

(2)(i) Whenever the Administrator conducts a test on a test engine, the results of that test will, unless subsequently invalidated by the Administrator, comprise the official data for the engine and the manufacturer's data will not be used in determining compliance with emission standards.

(ii) Prior to the performance of such test, the Administrator may adjust or cause to be adjusted any adjustable parameter of the test engine which the Administrator has determined to be subject to adjustment for certification testing, to any setting within the physically adjustable range of that parameter, to determine whether such engine conforms to applicable emission standards.

(iii) For those engine parameters which the Administrator has not determined to be subject to adjustment for certification testing, the test engine presented to the Administrator for testing will be calibrated within the production tolerances applicable to the manufacturer specification shown on the engine label or in the owner's manual, as specified in the application for certification.

(c) Use of carryover test data. In lieu of testing, the manufacturer may submit, with the Administrator's approval, emission test data used to certify substantially similar engine families in previous years. This “carryover” test data is only allowable if the data shows the test engine would fully comply with the emission standards for the applicable class.

(d) Scheduled maintenance during testing. No scheduled maintenance may be performed during testing of the engine.

(e) Unscheduled maintenance on test engines. (1) Manufacturers may not perform any unscheduled engine, emission control system, or fuel system adjustment, repair, removal, disassembly, cleaning, or replacement on a test engine without the advance approval of the Administrator.

(i) A preliminary determination has been made that a part failure or system malfunction, or the repair of such failure or malfunction, does not render the engine unrepresentative of engines in use, and does not require direct access to the combustion chamber; and

(ii) A determination has been made that the need for maintenance or repairs is indicated by an overt malfunction such as persistent misfire, engine stall, overheating, fluid leakage, or loss of oil pressure.

(3) Emission measurements may not be used as a means of determining the need for unscheduled maintenance under paragraph (e)(2) of this section.

(4) The Administrator must have the opportunity to verify the extent of any overt indication of part failure (for example, misfire, stall), or an activation of an audible and/or visual signal, prior to the manufacturer performing any maintenance related to such overt indication or signal.

(5) Unless approved by the Administrator prior to use, engine manufacturers may not use any equipment, instruments, or tools to identify malfunctioning, maladjusted, or defective engine components unless the same or equivalent equipment, instruments, or tools are available at dealerships and other service outlets and are used in conjunction with scheduled maintenance on such components.

(6) If the Administrator determines that part failure or system malfunction occurrence and/or repair rendered the engine unrepresentative of production engines, the engine cannot be used as a test engine.

(7) Unless waived by the Administrator, complete emission tests are required before and after any engine maintenance which may reasonably be expected to affect emissions.

(f) Engine failure. A manufacturer may not use as a test engine any engine which incurs major mechanical failure necessitating disassembly of the engine. This prohibition does not apply to failures which occur after completion of the service accumulation period.

[60 FR 34598, July 3, 1995, as amended at 65 FR 24308, Apr. 25, 2000; 70 FR 40448, July 13, 2005]

(a) Use of special test procedures by EPA. The Administrator may establish special test procedures for any engine that the Administrator determines is not susceptible to satisfactory testing under the specified test procedures set forth in subpart E of this part.

(b)(1) Use of alternate test procedures by an engine manufacturer. A manufacturer may elect to use an alternate test procedure provided that it yields results equal to the results from the specified test procedure in subpart E, its use is approved in advance by the Administrator, and the basis for equivalent results with the specified test procedure is fully described in the manufacturer's application.

(2) An engine manufacturer electing to use alternate test procedures is solely responsible for the results obtained. The Administrator may reject data generated under test procedures which do not correlate with data generated under the specified procedures.

(4) Where we specify mandatory compliance with the procedures of 40 CFR part 1065, manufacturers may elect to use the procedures specified in 40 CFR part 86, subpart N, as an alternate test procedure without advance approval by the Administrator.

(c) Optional procedures approved during Phase 1 can be carried over to Phase 2, following advance approval by the Administrator, to the extent the alternate procedure continues to yield results equal to the results from the specified test procedures in subpart E of this part.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar. 30, 1999; 70 FR 40448, July 13, 2005]

(a) The engine manufacturer must maintain the following adequately organized records:

(3) A detailed history of each test engine used for certification including the following:

(i) A description of the test engine's construction, including a general description of the origin and buildup of the engine, steps taken to insure that it is representative of production engines, description of components specially built for the test engine, and the origin and description of all emission-related components;

(ii) A description of the method used for engine service accumulation, including date(s) and the number of hours accumulated;

(iii) A description of all maintenance, including modifications, parts changes, and other servicing performed, and the date(s), and reason(s) for such maintenance;

(iv) A description of all emission tests performed including routine and standard test documentation, as specified in subpart E of this part, date(s), and the purpose of each test;

(v) A description of all tests performed to diagnose engine or emission control performance, giving the date and time of each and the reason(s) for the test; and

(vi) A description of any significant event(s) affecting the engine during the period covered by the history of the test engine but not described by an entry under one of the previous paragraphs of this section.

(b) Routine emission test data, such as those reporting test cell temperature and relative humidity at start and finish of test and raw emission results from each mode or test phase, must be retained for a period of one year after issuance of all certificates of conformity to which they relate. All other information specified in paragraph (a) of this section must be retained for a period of eight years after issuance of all certificates of conformity to which they relate.

(c) Records may be kept in any format and on any media, provided that, at the Administrator's request, organized, written records in English are promptly supplied by the manufacturer.

(d) The manufacturer must supply, at the Administrator's request, copies of any engine maintenance instructions or explanations issued by the manufacturer.

(a) The engine manufacturer must notify the Administrator when either an engine is to be added to a certificate of conformity, an FEL is to be changed, or changes are to be made to a product line covered by a certificate of conformity. Notification occurs when the manufacturer submits an amendment to the original application prior to either producing such engines or making such changes to a product line.

(b) The amendment must request that the engine manufacturer's existing certificate of conformity be amended and include the following information:

(1) A full description of the engine to be added or the change(s) to be made in production;

(3) Engineering evaluations or reasons why the original test engine is or is not still appropriate.

(c) The Administrator may require the engine manufacturer to perform tests on an engine representing the engine to be added or changed.

(d) Decision by Administrator. (1) Based on the submitted amendment and data derived from such testing as the Administrator may require or conduct, the Administrator must determine whether the proposed addition or change would still be covered by the certificate of conformity then in effect.

(2) If the Administrator determines that the new or changed engine(s) meets the requirements of this subpart and the Act, the appropriate certificate of conformity will be amended.

(3) If the Administrator determines that the proposed amendment would not be covered by the certificate of conformity, the Administrator must provide a written explanation to the engine manufacturer of his or her decision not to amend the certificate. The manufacturer may request a hearing on a denial.

(4) If the Administrator determines that a revised FEL meets the requirements of this subpart and the Act, the appropriate certificate of conformity will be amended, or a new certificate will be issued to reflect the revised FEL. The certificate of conformity is revised conditional upon compliance with §90.207(b).

(e)(1) Alternatively, an engine manufacturer may make changes in or additions to production engines concurrently with amending the application for an engine family as set forth in paragraph (a) and (b) of this section. In these circumstances the manufacturer may implement the production change without EPA pre-approval provided the request for change together with all supporting emission test data, related engineering evaluations, and other supporting documentation is received at EPA within three working days of implementing the change. Such changes are ultimately still subject to the provisions of paragraphs (c) and (d) of this section.

(2) If, after a review, the Administrator determines that additional testing or information is required, the engine manufacturer must provide required test data or information within 30 days or cease production of the affected engines.

(3) If the Administrator determines that the affected engines do not meet applicable requirements, the Administrator will notify the engine manufacturer to cease production of the affected engines.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar. 30, 1999; 69 FR 1833, Jan. 12, 2004]

(a) If, after review of the engine manufacturer's application, request for certification, information obtained from any inspection, and any other information the Administrator may require, the Administrator determines that the test engine does not meet applicable standards and requirements, the Administrator will notify the manufacturer in writing, setting forth the basis for this determination.

(b) Notwithstanding the fact that engines described in the application may comply with all other requirements of this subpart, the Administrator may deny the issuance of or revoke a previously issued certificate of conformity if the Administrator finds any one of the following infractions to be substantial:

(2) The engine manufacturer denies an EPA enforcement officer or EPA authorized representative the opportunity to conduct authorized inspections;

(3) The engine manufacturer fails to supply requested information or amend its application to include all engines being produced;

(4) The engine manufacturer renders inaccurate any test data which it submits or otherwise circumvents the intent of the Act or this part; or

(5) The engine manufacturer denies an EPA enforcement officer or EPA authorized representative reasonable assistance (as defined in §90.506).

(c) If a manufacturer knowingly commits an infraction specified in paragraph (b)(1) or (b)(4) of this section or knowingly commits any fraudulent act which results in the issuance of a certificate of conformity, the Administrator may deem such certificate void ab initio.

(d) When the Administrator denies or revokes a certificate of conformity, the engine manufacturer will be provided a written determination. The manufacturer may request a hearing on the Administrator's decision.

(e) Any revocation of a certificate of conformity extends no further than to forbid the introduction into commerce of those engines previously covered by the certification which are still in the possession of the engine manufacturer, except in cases of such fraud or other misconduct that makes the certification void ab initio.

(a) An engine manufacturer may request a hearing on the Administrator's denial or revocation of a certificate of conformity.

(b) The engine manufacturer's request must be filed within 30 days of the Administrator's decision, be in writing, and set forth the manufacturer's objections to the Administrator's decision and data to support the objections.

(c) If, after review of the request and supporting data, the Administrator finds that the request raises a substantial and factual issue, the Administrator will provide the engine manufacturer a hearing.

The hearing procedures set forth in §§90.513, 90.514, and 90.515 apply to this subpart.

Any engine manufacturer that has applied for certification of a new engine or engine family subject to certification testing under this subpart must admit or cause to be admitted to any applicable facilities during operating hours any EPA enforcement officer or EPA authorized representative as provided in §90.506.

§ 90.201 Applicability.

The requirements of this subpart C are applicable to all Phase 2 spark-ignition engines subject to the provisions of subpart A of this part except as provided in §90.103(a). These provisions are not applicable to any Phase 1 engines. Participation in the averaging, banking and trading program is voluntary, but if a manufacturer elects to participate, it must do so in compliance with the regulations set forth in this subpart. The provisions of this subpart are applicable for HC+NO_X(NMHC+NO_X) emissions but not for CO emissions. To the extent specified in 40 CFR part 60, subpart JJJJ, stationary engines certified under this part and subject to the standards of 40 CFR part 60, subpart JJJJ, may participate in the averaging, banking, and trading program described in this subpart.

The definitions in subpart A of this part apply to this subpart. The following definitions also apply to this subpart:

Averaging means the exchange of emission credits between engine families within a given manufacturer's product line.

Banking means the retention of emission credits by the manufacturer generating the emission credits or obtaining such credits through trading, for use in future model year averaging or trading as permitted in this part.

Emission credits represent the amount of emission reduction or exceedance, by an engine family, below or above the applicable HC+NO_X(NMHC+NO_X) emission standard, respectively. FELs below the standard create “positive credits,” while FELs above the standard create “negative credits.” In addition, “projected credits” refer to emission credits based on the projected applicable production volume of the engine family. “Reserved credits” are emission credits generated within a model year waiting to be reported to EPA at the end of the model year. “Actual credits” refer to emission credits based on actual applicable production volume as contained in the end-of-year reports submitted to EPA. Some or all of these credits may be revoked if EPA review of the end-of-year reports or any subsequent audit action(s) reveals problems or errors of any nature with credit computations.

(a) The certification averaging, banking, and trading provisions for HC+NO_Xand NMHC+NO_Xemissions from eligible engines are described in this subpart.

(b) An engine family may use the averaging, banking and trading provisions for HC+NO_Xand NMHC+NO_Xemissions if it is subject to regulation under this part with certain exceptions specified in paragraph (c) of this section. HC+NO_Xand NMHC+NO_Xcredits shall be interchangeable subject to the limitations on credit generation, credit usage, and other provisions described in this subpart.

(c) A manufacturer shall not include in its calculation of credit generation and may exclude from its calculation of credit usage, any new engines:

(1) Which are intended to be exported, unless the manufacturer has reason or should have reason to believe that such engines have been or will be imported in a piece of equipment; or

(2) Which are subject to state engine emission standards pursuant to a waiver granted by EPA under section 209(e) of the Act, unless the manufacturer demonstrates to the satisfaction of the Administrator that inclusion of these engines in averaging, banking and trading is appropriate.

(d) For an engine family using credits, a manufacturer may, at its option, include its entire production of that engine family in its calculation of credit usage for a given model year.

(e) (1) A manufacturer may certify engine families at Family Emission Limits (FELs) above or below the applicable emission standard subject to the limitation in paragraph (f) of this section, provided the summation of the manufacturer's projected balance of credits from all calculations and credit transactions for all engine classes in a given model year is greater than or equal to zero, as determined under §90.207. Notwithstanding the previous sentence, a manufacturer may project a negative balance of credits as allowed under §90.207(c)(2).

(2) A manufacturer of an engine family with an FEL exceeding the applicable emission standard must obtain positive emission credits sufficient to address the associated credit shortfall via averaging, banking, or trading.

(3) A nonhandheld engine family with an FEL below the applicable emission standard may generate positive emission credits for averaging, banking, or trading, or a combination thereof. A handheld engine family with an FEL below the applicable emission standard may generate positive emission credits for averaging or trading. A handheld engine family meeting the requirements of §90.205(a)(4) or (5), whichever is applicable, may generate positive emission credits for banking.

(4) In the case of a Selective Enforcement Audit (SEA) failure, credits may be used to cover subsequent production of engines for the family in question if the manufacturer elects to recertify to a higher FEL. Credits may not be used to remedy a nonconformity determined by an SEA, except that the Administrator may permit the use of credits to address a nonconformity determined by an SEA where the use of such credits is one component of a multi-part remedy for the previously produced engines and the remedy, including the use of credits and the quantity of credits being used, is such that the Administrator is satisfied that the manufacturer has strong and lasting incentive to accurately verify its new engine emission levels and will set or reset its FELs for current and future model years so that production line compliance is assured.

(5) In the case of a production line testing (PLT) failure pursuant to subpart H of this part, a manufacturer may revise the FEL based upon production line testing results obtained under subpart H of this part and upon Administrator approval pursuant to §90.122(d). The manufacturer may use credits to cover both past production and subsequent production of the engines as needed as allowed under §90.207(c)(1).

(f) No Phase 2 engine family may have a HC + NO_XFEL that is greater than 32.2 g/kW-hr for Class I engines, 94 g/kW-hr for Class I-A engines, 50 g/kW-hr for Class I-B engines, 26.8 g/kW-hr for Class II engines, 336 g/kW-hr for Class III engines, 275 g/kW-hr for Class IV engines, or 186 g/kW-hr for Class V engines.

(g)(1) Credits generated in a given model year by an engine family subject to the Phase 2 emission requirements may only be used in averaging, banking or trading, as appropriate, for any other engine family for which the Phase 2 requirements are applicable. Credits generated in one model year may not be used for prior model years, except as allowed under §90.207(c).

(2) For the 2005 model year and for each subsequent model year, manufacturers of Class II engines must provide a demonstration that the production weighted average FEL for HC+NO_X(including NMHC+NO_XFELs), for all of the manufacturer's Class II engines, will not exceed 13.6 g/kW-hr for the 2005 model year, 13.1 g/kW-hr for the 2006 model year and 12.6 g/kW-hr for the 2007 and each subsequent Phase 2 model year. Such demonstration shall be subject to the review and approval of the Administrator, shall be provided at the time of the first Class II certification of that model year and shall be based on projected eligible production for that model year.

(h) Manufacturers must demonstrate compliance under the averaging, banking, and trading provisions for a particular model year by 270 days after the end of the model year. Except as provided in §90.207(c), an engine family generating negative credits for which the manufacturer does not obtain or generate an adequate number of positive credits by that date from the same or previous model year engines will violate the conditions of the certificate of conformity. The certificate of conformity may be voided ab initio pursuant to §90.123 for this engine family.

[64 FR 15239, Mar. 30, 1999, as amended at 65 FR 24308, Apr. 25, 2000; 69 FR 1833, Jan. 12, 2004]

(a) Negative credits from engine families with FELs above the applicable emission standard must be offset by positive credits from engine families having FELs below the applicable emission standard, as allowed under the provisions of this subpart. Averaging of credits in this manner is used to determine compliance under §90.207(b). A manufacturer may have a negative balance of credits as allowed under §90.207(c)(2).

(b) Cross-class averaging of credits is allowed across all classes of nonroad spark-ignition engines at or below 19 kW.

(c) Credits used in averaging for a given model year may be obtained from credits generated in the same model year by another engine family, credits banked in previous model years, or credits of the same or previous model year obtained through trading subject to the provisions of §90.205(a). Credits generated under the previously available “Optional transition year averaging, banking, and trading program for Phase 2 handheld engines” of §§90.212 through 90.220, since repealed, may also be used in averaging. The restrictions of this paragraph notwithstanding, credits from a given model year may be used to address credit needs of previous model year engines as allowed under §90.207(c).

(d) The use of credits generated under the early banking provisions of §90.205(b) is subject to regulations under this subpart.

[64 FR 15239, Mar. 30, 1999, as amended at 65 FR 24308, Apr. 25, 2000; 69 FR 1834, Jan. 12, 2004]

(a)(1) Beginning August 1, 2007, a manufacturer of a Class I engine family with an FEL below the applicable emission standard for a given model year may bank credits in that model year for use in averaging and trading. For new Class I engine families initially produced during the period starting August 1, 2003 through July 31, 2007, a manufacturer of a Class I engine family with an FEL below the applicable emission standard for a given model year may bank credits in that model year for use in averaging and trading.

(2) Beginning with the 2000 model year, a manufacturer of a Class I-A or Class I-B engine family with an FEL below the applicable emission standard for a given model year may bank credits in that model year for use in averaging and trading.

(3) Beginning with the 2001 model year, a manufacturer of a Class II engine family with an FEL below the applicable emission standard for a given model year may bank credits in that model year for use in averaging and trading.

(4) For the 2002 model year, a manufacturer of a Class III or Class IV engine family may bank credits for use in future model year averaging and trading from only those Class III or Class IV engine families with an FEL at or below 72 g/kW-hr. Beginning with the 2003 model year, a manufacturer of a Class III or Class IV engine family with an FEL below the applicable emission standard may generate credits for use in future model year averaging and trading.

(5) Beginning with the 2004 model year, a manufacturer of a Class V engine family with an FEL below the applicable emission standard may generate credits for use in future model year averaging and trading.

(6) Negative credits may be banked only according to the requirements under §90.207(c).

(b)(1) For Class I engine families initially produced during the period beginning with the 1999 model year and prior to August 1, 2003, a manufacturer may bank early credits for engines with HC + NO_XFELs below 16.1 g/kW-hr. All early credits for such Class I engines shall be calculated against a HC + NO_Xlevel of 20.5 g/kW-hr and may continue to be calculated against the 20.5 g/kW-hr level until August 1, 2007.

(2) Beginning with the 1999 model year and prior to the applicable date listed in paragraph (a) of this section for Class II engines, a manufacturer may bank early credits for all Class II engines with HC+NO_XFELs below 12.1 g/kW-hr. All early credits for Class II engines shall be calculated against a HC+NO_Xlevel of 18.0 g/kW-hr.

(3) Beginning with the 2000 model year and prior to the applicable date listed in paragraph (a) of this section for Class III engines, a manufacturer may bank early credits for all Class III engines with HC+NO_XFELs below 72 g/kW-hr. All early credits for Class III engines shall be calculated against a HC+NO_Xlevel of 238 g/kW-hr.

(4) Beginning with the 2000 model year and prior to the applicable date listed in paragraph (a) of this section for Class IV engines, a manufacturer may bank early credits for all Class IV engines with HC+NO_XFELs below 72 g/kW-hr. All early credits for Class IV engines shall be calculated against a HC+NO_Xlevel of 196 g/kW-hr.

(5) Beginning with the 2000 model year and prior to the applicable date listed in paragraph (a) of this section for Class V engines, a manufacturer may bank early credits for all Class V engines with HC+NO_XFELs below 87 g/kW-hr. All early credits for Class V engines shall be calculated against a HC+NO_Xlevel of 143 g/kW-hr.

(6) Engines certified under the early banking provisions of this paragraph are subject to all of the requirements of this part applicable to Phase 2 engines.

(c) A manufacturer may bank actual credits only after the end of the model year and after EPA has reviewed the manufacturer's end-of-year reports. During the model year and before submittal of the end-of-year report, credits originally designated in the certification process for banking will be considered reserved and may be redesignated for trading or averaging in the end-of-year report and final report.

(d) Credits declared for banking from the previous model year that have not been reviewed by EPA may be used in averaging or trading transactions. However, such credits may be revoked at a later time following EPA review of the end-of-year report or any subsequent audit actions.

[64 FR 15239, Mar. 30, 1999, as amended at 65 FR 24308, Apr. 25, 2000; 69 FR 1834, Jan. 12, 2004]

(a) An engine manufacturer may exchange emission credits with other engine manufacturers in trading, subject to the trading restriction specified in §90.207(c)(2).

(b) Credits for trading can be obtained from credits banked in previous model years or credits generated during the model year of the trading transaction.

(d) Traded credits are subject to the limitations on use for past model years, as set forth in §90.204(c).

(e) In the event of a negative credit balance resulting from a transaction, both the buyer and the seller are liable, except in cases involving fraud. Certificates of all engine families participating in a negative trade may be voided ab initio pursuant to §90.123.

[64 FR 15239, Mar. 30, 1999, as amended at 65 FR 24309, Apr. 25, 2000; 69 FR 1834, Jan. 12, 2004]

(a) For each engine family, HC+NO_X[NMHC+NO_X] certification emission credits (positive or negative) are to be calculated according to the following equation and rounded to the nearest gram. Consistent units are to be used throughout the equation.

Production = eligible production as defined in this part. Annual production projections are used to project credit availability for initial certification. Eligible production volume is used in determining actual credits for end-of-year compliance determination.

Standard = the current and applicable Small SI engine HC+NO_X(NMHC+NO_X) emission standard in grams per kilowatt hour as determined in §90.103 or, for early credits, the applicable emission level as specified in §90.205(b).

FEL = the family emission limit for the engine family in grams per kilowatt hour.

Power = the maximum modal power of the certification test engine, in kilowatts, as calculated from the applicable federal test procedure as described in this part.

Useful Life = the useful life in hours corresponding to the useful life category for which the engine family was certified.

Load Factor = 47 percent (i.e., 0.47) for Test Cycle A and Test Cycle B, and 85 percent (i.e., 0.85) for Test Cycle C. For approved alternate test procedures, the load factor must be calculated according to the following formula:

(b) Manufacturer compliance with the emission standards is determined on a corporate average basis at the end of each model year. A manufacturer is in compliance when the sum of positive and negative emission credits it holds is greater than or equal to zero, except that the sum of positive and negative credits may be less than zero as allowed under paragraph (c) of this section.

(c)(1) If, as a result of production line testing as required in subpart H of this part, an engine family is determined to be in noncompliance pursuant to §90.710, the manufacturer may raise its FEL for past and future production as necessary. Further, a manufacturer may carry a negative credit balance (known also as a credit deficit) for the subject class and model year and for the next three model years. The credit deficit may be no larger than that created by the nonconforming family. If the credit deficit still exists after the model year following the model year in which the nonconformity occurred, the manufacturer must obtain and apply credits to offset the remaining credit deficit at a rate of 1.2 grams for each gram of deficit within the next two model years. The provisions of this paragraph are subject to the limitations in paragraph (d) of this section.

(c)(2) For model years 2004 through 2007, an engine manufacturer who certifies at least one Class V engine family in a given model year may carry forward a credit deficit for four model years, but must not carry such deficit into the fifth year, provided the deficit is attributable to negative credits from its Class V engine families, subject to the following provisions:

(i) Credit deficits are permitted for model years 2004 through 2007 but cannot occur for more than two consecutive model years for a given manufacturer;

(ii)(A) If an engine manufacturer calculates that it has a credit deficit for a given model year, it must obtain sufficient credits from engine families produced by itself or another manufacturer in a model year no later than the fourth model year following the model year for which it calculated the credit deficit. (Example: if a manufacturer calculates that it has a credit deficit for the 2004 model year, it must obtain sufficient credits to offset that deficit from its own production or that of other manufacturers' 2008 or earlier model year engine families.);

(B) An engine manufacturer carrying the deficit into the first model year following the year in which it was generated must generate or obtain credits to offset that deficit and apply them to the deficit at a rate of 1:1. An engine manufacturer carrying the deficit into the second and third model years must generate or obtain credits to offset that deficit and apply them to the deficit at a rate of 1.1:1 ( i.e., deficits carried into the second and third model year must be repaid with credits equal to 110 percent of the deficit). Deficits carried into the fourth model year must be offset by credits at a rate of 1.2:1 ( i.e., 120 percent of the deficit);

(iii) An engine manufacturer who has a credit deficit may use credits from any class of spark-ignition nonroad engines at or below 19 kilowatts generated or obtained through averaging, banking or trading to offset the credit deficit; and,

(iv) An engine manufacturer must not bank credits for future use or trade credits to another engine manufacturer during a model year in which it has generated a deficit or into which it has carried a deficit.

(d) Regulations elsewhere in this part notwithstanding, if an engine manufacturer experiences two or more production line testing failures pursuant to the regulations in subpart H of this part in a given model year, the manufacturer may raise the FEL of previously produced engines only to the extent that such engines represent no more than 10 percent of the manufacturer's total eligible production for that model year, as determined on the date when the FEL is adjusted. For any additional engine families determined to be in noncompliance, the manufacturer must conduct offsetting projects approved in advance by the Administrator.

(e) If, as a result of production line testing under this subpart, a manufacturer desires to lower its FEL it may do so subject to §90.708(c).

(f) Except as allowed at paragraph (c) of this section, when a manufacturer is not in compliance with the applicable emission standard by the date 270 days after the end of the model year, considering all credit calculations and transactions completed by then, the manufacturer will be in violation of the regulations in this part and EPA may, pursuant to §90.123, void ab initio the certificates of engine families for which the manufacturer has not obtained sufficient positive emission credits.

(g) Credit deficits. (1) Manufacturers must offset any deficits for a given model year by the reporting deadline for the fourth model year following the model year in which the deficits were generated as required in paragraph (c)(2) of this section. Manufacturers may offset deficits by generating credits or acquiring credits generated by another manufacturer.

(2)(i) Failure to meet the requirements of paragraph (c)(2) of this section within the required timeframe for offsetting deficits will be considered to be a failure to satisfy the conditions upon which the certificate(s) was issued and the individual noncomplying engines not covered by the certificate must be determined according to this section.

(ii) If deficits are not offset within the specified time period, the number of engines which could not be covered in the calculation to show compliance with the fleet average HC+NO_Xstandard in the model year in which the deficit occurred and thus are not covered by the certificate must be calculated using the methodology described in paragraph (g)(2)(iii) of this section.

(iii) EPA will determine the engines for which the condition on the certificate was not satisfied by designating engines in the Class V engine family with the highest HC+NO_XFELs first and continuing progressively downward through the Class V engine families until a number of engines having a credit need, as calculated under paragraph (a) of this section, equal to the remaining deficit is reached. If this calculation determines that only a portion of engines in a Class V engine family contribute to the deficit situation, then EPA will designate a subset of actual engines in that engine family as not covered by the certificate, starting with the last engine produced and counting backwards. EPA may request additional information from the manufacturer that would help identify the actual engine not covered by the certificate.

(iv) In determining the engine count, EPA will calculate the mass of credits based on the factors identified in paragraph (a) of this section.

(3) If a manufacturer is purchased by, merges with or otherwise combines with another manufacturer, the manufacturer continues to be responsible for offsetting any deficits outstanding within the required time period. Any failure to offset the deficits will be considered to be a violation of paragraph (g)(1) of this section and may subject the manufacturer to an enforcement action for sale of engines not covered by a certificate, pursuant to paragraph (g)(2) of this section.

(4) If a manufacturer that has a deficit ceases production of handheld engines, the manufacturer will be considered immediately in violation of paragraph (g)(1) of this section and may be subject to an enforcement action for sale of engines not covered by a certificate, pursuant to paragraph (g)(2) of this section

(5) For purposes of calculating the statute of limitations, a violation of the requirements of paragraph (g)(1) of this section, a failure to satisfy the conditions upon which a certificate(s) was issued and hence a sale of engines not covered by the certificate, all occur upon the expiration of the deadline for offsetting deficits specified in paragraph (g)(1) of this section.

[64 FR 15239, Mar. 30, 1999; 64 FR 16526, Apr. 5, 1999, as amended at 65 FR 24309, Apr. 25, 2000; 69 FR 1834, Jan. 12, 2004]

(1) Submit a statement that the engines for which certification is requested will not, to the best of the manufacturer's belief, cause the manufacturer to be in noncompliance under §90.207(b) when all credits are calculated for the manufacturer's engine families.

(2) Declare an FEL for each engine family for HC+NO_X(NMHC+NO_X). The FEL must have the same number of significant digits as the emission standard.

(3) Indicate the projected number of credits generated/needed for this family; the projected applicable eligible annual production volume, and the values required to calculate credits as given in §90.207.

(4) Submit calculations in accordance with §90.207 of projected emission credits (positive or negative) based on annual production projections for each family.

(5) (i) If the engine family is projected to have negative emission credits, state specifically the source (manufacturer/engine family or reserved) of the credits necessary to offset the credit deficit according to projected annual production.

(ii) If the engine family is projected to generate credits, state specifically (manufacturer/engine family or reserved) where the projected annual credits will be applied.

(iii) The manufacturer may supply the information required by this section in the form of a spreadsheet detailing the manufacturer's annual production plans and the credits generated or consumed by each engine family.

(b) All certificates issued are conditional upon manufacturer compliance with the provisions of this subpart both during and after the model year of production.

(c) Failure to comply with all provisions of this subpart will be considered to be a failure to satisfy the conditions upon which the certificate was issued, and the certificate may be determined to be void ab initio pursuant to §90.123.

(d) The manufacturer bears the burden of establishing to the satisfaction of the Administrator that the conditions upon which the certificate was issued were satisfied or waived.

(e) Projected credits based on information supplied in the certification application may be used to obtain a certificate of conformity. However, any such credits may be revoked based on review of end-of-year reports, follow-up audits, and any other verification steps considered appropriate by the Administrator.

(a) The manufacturer must establish, maintain, and retain the following adequately organized and indexed records for each engine family:

(2) Family Emission Limit (FEL) or FELs where FEL changes have been implemented during the model year;

(5) Records appropriate to establish the quantities of engines that constitute eligible production as defined in §90.3 for each FEL.

(b) Any manufacturer producing an engine family participating in trading reserved credits must maintain the following records on an annual basis for each such engine family:

(c) The manufacturer must retain all records required to be maintained under this section for a period of eight years from the due date for the end-of-model year report. Records may be retained as hard copy or reduced to microfilm, ADP diskettes, and so forth, depending on the manufacturer's record retention procedure; provided, that in every case all information contained in the hard copy is retained.

(d) Nothing in this section limits the Administrator's discretion in requiring the manufacturer to retain additional records, or submit information not specifically required by this section, if otherwise permitted by law.

(e) Pursuant to a request made by the Administrator, the manufacturer must submit to the Administrator the information that the manufacturer is required to retain.

(f) EPA may, pursuant to §90.123, void ab initio a certificate of conformity for an engine family for which the manufacturer fails to retain the records required in this section or to provide such information to the Administrator upon request.

(a) End-of-year and final reports must indicate the engine family, the engine class, the actual production volume, the values required to calculate credits as given in §90.207, and the number of credits generated/required. Manufacturers must also submit how and where credit surpluses were dispersed (or are to be banked) and/or how and through what means credit deficits were met. Copies of contracts related to credit trading must be included or supplied by the broker, if applicable. The report must include a calculation of credit balances to show that the credit summation for all engines is equal to or greater than zero (or less than zero in cases of negative credit balances as permitted in §90.207(c)). For model year 2005 and later, the report must include a calculation of the production weighted average HC+NO_X(including NMHC+NO_X) FEL for Class II engine families to show compliance with the provisions of §90.203(g)(2).

(b) The calculation of eligible production for end-of-year and final reports must be based on engines produced for the United States market, excluding engines which are subject to state emission standards pursuant to a waiver granted by EPA under section 209(e) of the Act. Upon advance written request, the Administrator will consider other methods to track engines for credit calculation purposes that provide high levels of confidence that eligible production or sales are accurately counted.

(c)(1)End-of-year reports must be submitted within 90 days of the end of the model year to: Manager, Engine Compliance Programs Group (6403–J), U.S. Environmental Protection Agency, Washington, DC 20460.

(2) Unless otherwise approved by the Administrator, final reports must be submitted within 270 days of the end of the model year to: Manager, Engine Compliance Programs Group (6403–J), U.S. Environmental Protection Agency, Washington, DC 20460.

(d) Failure by a manufacturer to submit any end-of-year or final reports in the specified time for any engines subject to regulation under this part is a violation of §90.1003(a)(2) and section 213(d) of the Clean Air Act for each engine.

(e) A manufacturer generating credits for banking only who fails to submit end-of-year reports in the applicable specified time period (90 days after the end of the model year) may not use the credits until such reports are received and reviewed by EPA. Use of projected credits pending EPA review is not permitted in these circumstances.

(f) Errors discovered by EPA or the manufacturer in the end-of-year report, including errors in credit calculation, may be corrected in the final report.

(g) If EPA or the manufacturer determines that a reporting error occurred on an end-of-year or final report previously submitted to EPA under this section, the manufacturer's credits and credit calculations must be recalculated. Erroneous positive credits will be void except as provided in paragraph (h) of this section. Erroneous negative credit balances may be adjusted by EPA.

(h) If EPA review determines a reporting error in the manufacturer's favor (that is, resulting in an increased credit balance) or if the manufacturer discovers such an error within 270 days of the end of the model year, EPA shall restore the credits for use by the manufacturer.

An engine manufacturer may request a hearing on the Administrator's voiding of the certificate under §§90.203(h), 90.206(e), 90.207(f), 90.208(c), or 90.209(f), pursuant to §90.124. The procedures of §90.125 shall apply to any such hearing.

(a) This subpart describes the equipment required in order to perform exhaust emission tests on new nonroad spark-ignition engines and vehicles subject to the provisions of subpart A of this part. Certain text in this subpart is identified as pertaining to Phase 1 or Phase 2 engines. Such text pertains only to engines of the specified Phase. If no indication of Phase is given, the text pertains to all engines, regardless of Phase.

(b) Exhaust gases, either raw or dilute, are sampled while the test engine is operated using a steady state test cycle on an engine dynamometer. The exhaust gases receive specific component analysis determining concentration of pollutant. Emission concentrations are converted to mass emission rates in grams per hour based on either fuel flow, fuel flow and engine intake air flow, or exhaust volume flow. Weighted emission rates are reported as grams per brake-kilowatt hour (g/kW-hr). See subpart E of this part for a complete description of the test procedure.

(c) Additional information about system design, calibration methodologies, and so forth, for raw gas sampling can be found in 40 CFR part 1065. Examples for system design, calibration methodologies, and so forth, for dilute exhaust gas sampling can be found in 40 CFR part 1065.

(d) For Phase 2 Class I, Phase 2 Class I–B, and Phase 2 Class II natural gas fueled engines, use the procedures of 40 CFR part 1065 to measure nonmethane hydrocarbon (NMHC) exhaust emissions from Phase 2 Class I, Phase 2 Class I–B, and Phase 2 Class II natural gas fueled engines.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15243, Mar. 30, 1999; 65 FR 24312, Apr. 25, 2000; 70 FR 40448, July 13, 2005]

The definitions in §90.3 apply to this subpart. The following definitions also apply to this subpart.

Intermediate speed means the engine speed which is 85 percent of the rated speed.

Rated speed means the speed at which the manufacturer specifies the maximum rated power of an engine.

(a) All engines subject to this subpart are tested for exhaust emissions. Engines are operated on dynamometers meeting the specification given in §90.305.

(b) The exhaust is tested for gaseous emissions using a raw gas sampling system as described in §90.414 or a constant volume sampling (CVS) system as described in §90.421. Both systems require analyzers (see paragraph (c) of this section) specific to the pollutant being measured.

(c) Analyzers used are a non-dispersive infrared (NDIR) absorption type for carbon monoxide and carbon dioxide analysis; paramagnetic (PMD), zirconia (ZRDO), or electrochemical type (ECS) for oxygen analysis; a flame ionization (FID) or heated flame ionization (HFID) type for hydrocarbon analysis; and a chemiluminescent detector (CLD) or heated chemiluminescent detector (HCLD) for oxides of nitrogen analysis.

(a) Dynamometer specifications. The dynamometer test stand and other instruments for measurement of speed and power output must meet the engine speed and torque accuracy requirements shown in Table 2 in Appendix A of this subpart. The dynamometer must be capable of performing the test cycle described in §90.410.

(b) Dynamometer calibration accuracy. (1) The dynamometer test stand and other instruments for measurement of power output must meet the calibration frequency shown in Table 2 in Appendix A of this subpart.

(2) A minimum of three calibration weights for each range used is required. The weights must be equally spaced and traceable to within 0.5 percent of National Institute for Standards and Testing (NIST) weights. Laboratories located in foreign countries may certify calibration weights to local government bureau standards.

(a)(1) Any lever arm used to convert a weight or a force through a distance into a torque must be used in a horizontal position for horizontal shaft dynamometers (±five degrees). For vertical shaft dynamometers, a pulley system may be used to convert the dynamometer's horizontal loading into the vertical plane.

(2) Calculate the indicated torque (IT) for each calibration weight to be used by:

(3) Attach each calibration weight specified in §90.305(b)(2) to the moment arm at the calibration distance determined in paragraph (a)(2) of this section. Record the power measurement equipment response (N-m) to each weight.

(6) If the measured torque is not within two percent of the calculated torque, adjust or repair the system. Repeat steps in paragraphs (a)(1) through (a)(6) of this section with the adjusted or repaired system.

(b) Option. A master load-cell or transfer standard may be used to verify the torque measurement system.

(1) The master load-cell and read out system must be calibrated using weights specified in §90.305(b)(2).

(3) Load the dynamometer to a minimum of three equally spaced torque values as indicated by the master load-cell for each in-use range used.

(4) The in-use torque measurement must be within two percent of the torque measured by the master system for each load used.

(5) If the in-use torque is not within two percent of the master torque, adjust or repair the system. Repeat steps in paragraphs (b)(2) through (b)(4) of this section with the adjusted or repaired system.

(c) Calibrated resistors may not be used for engine flywheel torque transducer calibration, but may be used to span the transducer prior to engine testing.

(d) Other engine dynamometer system calibrations such as speed are performed as specified by the dynamometer manufacturer or as dictated by good engineering practice.

An engine cooling system is required with sufficient capacity to maintain the engine at normal operating temperatures as prescribed by the engine manufacturer. Auxiliary fan(s) may be used to maintain sufficient engine cooling during engine dynamometer operation.

(a) Lubricating oil. Use the engine lubricating oil which meets the engine manufacturer's specifications for a particular engine and intended usage.

(1) Manufacturers must use engine lubricants representative of commercially available engine lubricants.

(2) For 2-stroke engines, the fuel/oil mixture ratio must be that which is recommended by the manufacturer.

(b) Test Fuels—Certification. (1) The manufacturer must use gasoline having the specifications, or substantially equivalent specifications approved by the Administrator, as specified in Table 3 in Appendix A of this subpart for exhaust emission testing of gasoline fueled engines. As an option, manufacturers may use the fuel specified in 40 CFR part 1065, subpart H, for gasoline-fueled engines.

(2) Alternative fuels, such as natural gas, propane, and methanol, used for exhaust emission testing and service accumulation of alternative fuel spark-ignition engines must be representative of commercially available alternative fuels.

(i) The manufacturer shall recommend the alternative fuel to be used for certification testing and engine service accumulation in accordance with paragraph (b)(3) of this section.

(ii) The Administrator shall determine the alternative fuel to be used for testing and engine service accumulation, taking into consideration the alternative fuel recommended by the manufacturer.

(ii) Information acceptable to the Administrator is provided to show that only the designated fuel would be used in customer service; and

(iii) Fuel specifications are approved in writing by the Administrator prior to the start of testing.

(c) Test fuels—service accumulation and aging. Unleaded gasoline representative of commercial gasoline generally available through retail outlets must be used in service accumulation and aging for gasoline-fueled spark-ignition engines. As an alternative, the certification test fuels specified under paragraph (b) of this section may be used for engine service accumulation and aging. Leaded fuel may not be used during service accumulation or aging.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15243, Mar. 30, 1999; 70 FR 40448, July 13, 2005]

(a) The measurement location must be within 10 cm of the engine intake system (i.e., the air cleaner, for most engines.)

This section refers to engines which are supplied with intake air other than the ambient air in the test cell (i.e., air which has been pumped directly to the engine air intake system). For engines which use ambient test cell air for the engine intake air, the ambient test cell humidity measurement may be used.

(a) Humidity conditioned air supply. Air that has had its absolute humidity altered is considered humidity-conditioned air. For this type of intake air supply, the humidity measurements must be made within the intake air supply system and after the humidity conditioning has taken place.

(b) Unconditioned air supply. Humidity measurements in unconditioned intake air supply systems must be made in the intake air stream entering the supply system. Alternatively, the humidity measurements can be measured within the intake air supply stream.

(a) General requirements. (1) Ambient temperature levels encountered by the test engine throughout the test sequence may not be less than 20 °C or more than 30 °C. All engines must be installed on the test bed at their design installation angle to prevent abnormal fuel distribution.

(2) Calculate all volumes and volumetric flow rates at standard conditions for temperature and pressure, and use these conditions consistently throughout all calculations. Standard conditions for temperature and pressure are 25 °C and 101.3 kPa.

(b) Engine test conditions. Measure the absolute temperature (designated as T and expressed in Kelvin) of the engine air at the inlet to the engine and the dry atmospheric pressure (designated as p_sand expressed in kPa), and determine the parameter f according to the following provisions for naturally aspirated engines:

For a certification test to be recognized as valid, the parameter f shall be between the limits as shown below: 0.96<f<1.04

(a) The shelf life of a calibration gas may not be exceeded. The expiration date stated by the gas supplier must be recorded.

(b) Pure gases. The required purity of the gases is defined by the contamination limits specified in this subsection. The following gases must be available for operation:

(1) Purified nitrogen, also refered to as “zero-grade nitrogen” (Contamination ≤ 1 ppm C, ≤ 1 ppm CO, ≤ 400 ppm CO₂, ≤ 0.1 ppm NO);

(3) Hydrogen-helium mixture (40 ±2 percent hydrogen, balance helium) (Contamination ≤ 1 ppm C, ≤ 400 ppm CO);

(4) Purified synthetic air, also refered to as “zero air” or “zero gas” (Contamination ≤ 1 ppm C, ≤ 1 ppm CO, ≤ 400 ppm CO₂, ≤ 0.1 ppm NO) (Oxygen content between 18–21 percent vol.).

(c) Calibration and span gases. (1) Calibration gas values are to be derived from NIST “Standard Reference Materials” (SRM's) and are to be single blends as specified in this subsection.

(2) Mixtures of gases having the following chemical compositions must be available:

NO_Xand purified nitrogen (the amount of NO₂contained in this calibration gas must not exceed five percent of the NO content);

Note: For the HFID or FID the manufacturer may choose to use as a diluent span gas and the calibration gas either purified synthetic air or purified nitrogen. Any mixture of C₃H₈and purified synthetic air which contains a concentration of propane higher than what a gas supplier considers to be safe may be substituted with a mixture of C₃H₈and purified nitrogen. However, the manufacturer must be consistent in the choice of diluent (zero air or purified nitrogen) between the calibration and span gases. If a manufacturer chooses to use C₃H₈and purified nitrogen for the calibration gases, then purified nitrogen must be the diluent for the span gases.

(3) The true concentration of a span gas must be within ±two percent of the NIST gas standard. The true concentration of a calibration gas must be within ±one percent of the NIST gas standard. The use of precision blending devices (gas dividers) to obtain the required calibration gas concentrations is acceptable. Give all concentrations of calibration gas on a volume basis (volume percent or volume ppm).

(4) The gas concentrations used for calibration and span may also be obtained by means of a gas divider, diluting either with purified N₂or with purified synthetic air. The accuracy of the mixing device must be such that the concentration of the diluted gases may be determined to within ±two percent.

(d) Oxygen interference check gases must contain propane with 350 ppmC ±75 ppmC hydrocarbon. Determine the concentration value to calibration gas tolerances by chromatographic analysis of total hydrocarbons plus impurities or by dynamic blending. For gasoline fueled engines, oxygen contentration must be between 0 and 1 percent O₂. Nitrogen must be the predominant diluent with the balance oxygen.

(e) Fuel for the hydrocarbon flame ionization detector (HC-FID) must be a blend of 40 ±two percent hydrogen with the balance being helium. The mixture must contain less than one ppm equivalent carbon response; 98 to 100 percent hydrogen fuel may be used with advance approval of the Administrator.

(f) Hydrocarbon analyzer burner air. The concentration of oxygen must be within one mole percent of the oxygen concentration of the burner air used in the latest oxygen interference check (percent O₂I), see §90.316(d). If the difference in oxygen concentration is greater than one mole percent, then the oxygen interference must be checked and, if necessary, the analyzer adjusted to meet the percent O₂I requirements. The burner air must contain less than two ppmC hydrocarbon.

(1) Carbon monoxide (CO) analysis. (i) The carbon monoxide analyzer shall be of the non-dispersive infrared (NDIR) absorption type.

(2) Carbon dioxide (CO ₂ ) analysis. (i) The carbon dioxide analyzer shall be of the non-dispersive infrared (NDIR) absorption type.

(3) Oxygen (O ₂ ) analysis. Oxygen (O₂) analyzers may be of the paramagnetic (PMD), zirconia (ZRDO) or electrochemical type (ECS).

(4) Hydrocarbon (HC) analysis. (i) For Raw Gas Sampling, the hydrocarbon analyzer shall be of the heated flame ionization (HFID) type. For constant volume sampling, the hydrocarbon analyzer may be of the flame ionization (FID) type or of the heated flame ionization (HFID) type.

(ii) For the HFID system, if the temperature of the exhaust gas at the sample probe is below 190 °C, the temperature of the valves, pipe work, and so forth, must be controlled so as to maintain a wall temperature of 190 °C ±11 °C. If the temperature of the exhaust gas at the sample probe is above 190 °C, the temperature of the valves, pipe work, and so forth, must be controlled so as to maintain a wall temperature greater than 180 °C.

(iii) For the HFID analyzer, the detector, oven, and sample-handling components within the oven must be suitable for continuous operation at temperatures to 200 °C. It must by capable of maintaining temperature within ±5.5 °C of the set point.

(v) The percent of oxygen interference must be less than three percent, as specified in §90.316(d).

(A) A NO₂to NO converter. The NO₂to NO converter efficiency must be at least 90 percent.

(ii) The quench interference must be less than 3.0 percent as measured in §90.325.

(b) Other analyzers and equipment. Other types of analyzers and equipment may be used if shown to yield equivalent results and if approved in advance by the Administrator.

(1) Carbon monoxide and carbon dioxide measurements must be made on a dry basis (for raw exhaust measurement only). Specific requirements for the means of drying the sample can be found in §90.313(e).

(2) Calibration or span gases for the NO_Xmeasurement system must pass through the NO₂to NO converter.

(d) The electromagnetic compatibility (EMC) of the equipment must be on a level as to minimize additional errors.

(e) Gas drying. Chemical dryers are not an acceptable method of removing water from the sample. Water removal by condensation is acceptable. If water is removed by condensation, the sample gas temperature or sample dew point must be monitored either within the water trap or downstream and its temperature must not exceed 7 °C. A water trap performing this function is an acceptable method. Means other than condensation may be used only with prior approval from the Administrator.

(a) Measurement and accuracy—general. The analyzers must have a measuring range which allows them to measure the concentrations of the exhaust gas sample pollutants with the accuracies shown in Table 2 in Appendix A of this subpart.

(1) Precision. The precision of the analyzer must be, at worst, two percent of full-scale concentration for each range used. The precision is defined as 2.5 times the standard deviation(s) of 10 repetitive responses to a given calibration or span gas.

(2) Noise. The analyzer peak-to-peak response to zero and calibration or span gases over any 10-second period must not exceed two percent of full-scale chart deflection on all ranges used.

(3) Zero drift. The analyzer zero-response drift during a one-hour period must be less than two percent of full-scale chart deflection on the lowest range used. The zero-response is defined as the mean response including noise to a zero-gas during a 30-second time interval.

(4) Span drift. The analyzer span drift during a one-hour period must be less than two percent of full-scale chart deflection on the lowest range used. The analyzer span is defined as the difference between the span-response and the zero-response. The span-response is defined as the mean response including noise to a span gas during a 30-second time interval.

(b) Operating procedure for analyzers and sampling system. Follow the start-up and operating instructions of the instrument manufacturer or use good engineering practice. Adhere to the minimum requirements given in §§90.316 through 90.325 and §90.409.

(c) Emission measurement accuracy—Bag sampling. (1) Good engineering practice dictates that exhaust emission sample analyzer readings below 15 percent of full-scale chart deflection should generally not be used.

(2) Some high resolution read-out systems, such as computers, data loggers, and so forth, can provide sufficient accuracy and resolution below 15 percent of full scale. Such systems may be used provided that additional calibrations are made to ensure the accuracy of the calibration curves. The following procedure for calibration below 15 percent of full scale may be used:

Note to paragraph(c): If a gas divider is used, the gas divider must conform to the accuracy requirements as follows. The use of precision blending devices (gas dividers) to obtain the required calibration gas concentrations is acceptable, provided that the blended gases are accurate to within ±1.5 percent of NIST gas standards or other gas standards which have been approved by the Administrator. This accuracy implies that primary gases used for blending must be “named” to an accuracy of at least ±one percent, traceable to NIST or other approved gas standards.

(i) Span the full analyzer range using a top range calibration gas. The span gases must be accurate to within ±two percent of NIST gas standards or other gas standards which have been approved by the Administrator.

(ii) Generate a calibration curve according to, and meeting the requirements, of the sections describing analyzer calibrations which are found in §§90.316, 90.317, 90.318, and 90.320.

(iii) Select a calibration gas (a span gas may be used for calibrating the CO₂analyzer) with a concentration between the two lowest non-zero gas divider increments. This gas must be “named” to an accuracy of ±one percent of NIST gas standards or other standards approved by the Administrator.

(iv) Using the calibration curve fitted to the points generated in paragraphs (c)(2) (i) and (ii) of this section, check the concentration of the gas selected in paragraph (c)(2)(iii) of this section. The concentration derived from the curve must be within ±2.3 percent (±2.8 percent for CO₂span gas) of the gas's original named concentration.

(v) Provided the requirements of paragraph (c)(2)(iv) of this section are met, use the gas divider with the gas selected in paragraph (c)(2)(iii) of this section and determine the remainder of the calibration points. Fit a calibration curve per §§90.316, 90.317, 90.318, and 90.320 of this chapter for the entire analyzer range.

(d) Emission measurement accuracy—continuous sampling. Analyzers used for continuous analysis must be operated such that the measured concentration falls between 15 and 100 percent of full-scale chart deflection. Exceptions to these limits are:

(1) The analyzer's response may be less than 15 percent or more than 100 percent of full scale if automatic range change circuitry is used and the limits for range changes are between 15 and 100 percent of full-scale chart deflection;

(i) The alternative in paragraph (c)(2) of this section is used to ensure that the accuracy of the calibration curve is maintained below 15 percent; or

(iii) The emissions from the engine are erratic and the integrated chart deflection value for the cycle is greater than 15 percent of full scale; or

(iv) The contribution of all data read below the 15 percent level is less than 10 percent by mass of the final test results.

(a) Warming-up time. The warming-up time should be according to the recommendations of the manufacturer. If not specified, a minimum of two hours should be allowed for warming up the analyzers.

(b) NDIR, FID, and HFID analyzer. Tune and maintain the NDIR analyzer per the instrument manufacturer recommendations or specifications or using good engineering practice. The combustion flame of the FID or HFID analyzer must be optimized in order to meet the specifications in §90.316(b).

(c) Zero setting and calibration. Using purified synthetic air (or nitrogen), set the CO, CO₂, NO_X. and HC analyzers at zero. Connect the appropriate calibrating gases to the analyzers and record the values. Use the same gas flow rates and pressure as when sampling exhaust.

(d) Rechecking of zero setting. Recheck the zero setting and, if necessary, repeat the procedure described in paragraph (c) of this section.

(a) Calibrate the FID and HFID hydrocarbon analyzer as described in this section. Operate the HFID to a set point ±5.5 °C between 185 and 197 °C.

(b) Initial and periodic optimization of detector response. Prior to initial use and at least annually thereafter, adjust the FID and HFID hydrocarbon analyzer for optimum hydrocarbon response as specified in this paragraph. Alternative methods yielding equivalent results may be used, if approved in advance by the Administrator.

(1) Follow good engineering practices for initial instrument start-up and basic operating adjustment using the appropriate fuel (see §90.312) and purified synthetic air or zero-grade nitrogen.

(2) Use of one of the following procedures is required for FID or HFID optimization:

(i) The procedure outlined in Society of Automotive Engineers (SAE) paper No. 770141, “Optimization of a Flame Ionization Detector for Determination of Hydrocarbon in Diluted Automotive Exhausts;” author, Glenn D. Reschke. This procedure has been incorporated by reference. See §90.7.

(iii) Alternative procedures may be used if approved in advance by the Administrator.

(3) After the optimum flow rates have been determined, record them for future reference.

(c) Initial and periodic calibration. Prior to initial use and monthly thereafter, or within one month prior to the certification test, the FID or HFID hydrocarbon analyzer must be calibrated on all normally used instrument ranges using the steps in this paragraph. Use the same flow rate and pressures as when analyzing samples. Introduce calibration gases directly at the analyzer. An optional method for dilute sampling described in 40 CFR part 1065, subpart F, may be used.

(2) Zero the hydrocarbon analyzer with purified synthetic air or zero-grade nitrogen.

(3) Calibrate on each used operating range with calibration gases having nominal concentrations between 10 and 90 percent of that range. A minimum of six evenly spaced points covering at least 80 percent of the 10 to 90 range (64 percent) is required (see following table).

For each range calibrated, if the deviation from a least-squares best-fit straight line is two percent or less of the value at each data point, calculate concentration values by use of a single calibration factor for that range. If the deviation exceeds two percent at any point, use the best-fit non-linear equation which represents the data to within two percent of each test point to determine concentration.

(d) Oxygen interference optimization. Prior to initial use and monthly thereafter, perform the oxygen interference optimization as described in this paragraph. Choose a range where the oxygen interference check gases will fall in the upper 50 percent. Conduct the test, as outlined in this paragraph, with the oven temperature set as required by the instrument manufacturer. Oxygen interference check gas specifications are found in §90.312(d).

(3) Recheck zero response. If it has changed more than 0.5 percent of full scale repeat paragraphs (d)(1) and (d)(2) of this section to correct the problem.

(5) Recheck the zero response. If it has changed by more than ±one percent of full scale, repeat the test.

(6) Calculate the percent of oxygen interference (designated as percent O₂I) for each mixture in paragraph (d)(4) of this section according to the following equation.

A = hydrocarbon concentration (ppmC) of the span gas used in paragraph (d)(2) of this section.

B = hydrocarbon concentration (ppmC) of the oxygen interference check gases used in paragraph (d)(4) of this section.

(7) The percent of oxygen interference (designated as percent O₂I) must be less than ±three percent for all required oxygen interference check gases prior to testing.

(8) If the oxygen interference is greater than the specifications, incrementally adjust the air flow above and below the manufacturer's specifications, repeating paragraphs (d)(1) through (d)(7) of this section for each flow.

(9) If the oxygen interference is greater than the specification after adjusting the air flow, vary the fuel flow and thereafter the sample flow, repeating paragraphs (d)(1) through (d)(7) of this section for each new setting.

(10) If the oxygen interference is still greater than the specifications, repair or replace the analyzer, FID fuel, or burner air prior to testing. Repeat this section with the repaired or replaced equipment or gases.

(b) Initial and periodic interference. Prior to its initial use and annually thereafter, check the NDIR carbon monoxide analyzer for response to water vapor and CO₂.

(1) Follow good engineering practices for instrument start-up and operation. Adjust the analyzer to optimize performance on the most sensitive range to be used.

(2) Zero the carbon monoxide analyzer with either purified synthetic air or zero-grade nitrogen.

(3) Bubble a mixture of three percent CO₂in N₂through water at room temperature and record analyzer response.

(4) An analyzer response of more than one percent of full scale for ranges above 300 ppm full scale or more than three ppm on ranges below 300 ppm full scale requires corrective action. (Use of conditioning columns is one form of corrective action which may be taken.)

(c) Initial and periodic calibration. Prior to its initial use and monthly thereafter, or within one month prior to the certification test, calibrate the NDIR carbon monoxide analyzer.

(2) Zero the carbon monoxide analyzer with either purified synthetic air or zero-grade nitrogen.

(3) Calibrate on each used operating range with carbon monoxide-in-N₂calibration gases having nominal concentrations between 10 and 90 percent of that range. A minimum of six evenly spaced points covering at least 80 percent of the 10 to 90 range (64 percent) is required (see following table).

Additional calibration points may be generated. For each range calibrated, if the deviation from a least-squares best-fit straight line is two percent or less of the value at each data point, calculate concentration values by use of a single calibration factor for that range. If the deviation exceeds two percent at any point, use the best-fit non-linear equation which represents the data to within two percent of each test point to determine concentration.

(a) Calibrate the chemiluminescent oxides of nitrogen analyzer as described in this section.

(b) Initial and Periodic Interference: Prior to its initial use and monthly thereafter, or within one month prior to the certification test, check the chemiluminescent oxides of nitrogen analyzer for NO₂to NO converter efficiency. Figure 1 in Appendix B of this subpart is a reference for paragraphs (b)(1) through (11) of this section:

(1) Follow good engineering practices for instrument start-up and operation. Adjust the analyzer to optimize performance.

(2) Zero the oxides of nitrogen analyzer with purified synthetic air or zero-grade nitrogen.

(3) Connect the outlet of the NO_Xgenerator to the sample inlet of the oxides of nitrogen analyzer which has been set to the most common operating range.

(4) Introduce into the NO_Xgenerator analyzer-system an NO-in-nitrogen (N₂) mixture with an NO concentration equal to approximately 80 percent of the most common operating range. The NO₂content of the gas mixture must be less than five percent of the NO concentration.

(5) With the oxides of nitrogen analyzer in the NO mode, record the concentration of NO indicated by the analyzer.

(6) Turn on the NO_Xgenerator O₂(or air) supply and adjust the O₂(or air) flow rate so that the NO indicated by the analyzer is about 10 percent less than indicated in paragraph (b)(5) of this section. Record the concentration of NO in this NO+O₂mixture as value “c.”

(7) Switch the NO_Xgenerator to the generation mode and adjust the generation rate so that the NO measured on the analyzer is 20 percent of that measured in paragraph (b)(5) of this section. There must be at least 10 percent unreacted NO at this point. Record the concentration of residual NO as value “d.”

(8) Switch the oxides of nitrogen analyzer to the NO_Xmode and measure total NO_X. Record this value as “a.”

(9) Switch off the NO_Xgenerator but maintain gas flow through the system. The oxides of nitrogen analyzer will indicate the NO_Xin the NO+O₂mixture. Record this value as “b”.

(10) Turn off the NO_Xgenerator O₂(or air) supply. The analyzer will now indicate the NO_Xin the original NO-in-N₂mixture. This value should be no more than five percent above the value indicated in paragraph (b)(4) of this section.

(11) Calculate the efficiency of the NO_Xconverter by substituting the concentrations obtained into the following equation:

If converter efficiency is less than 90 percent, corrective action will be required.

(c) Initial and periodic calibration. Prior to its initial use and monthly thereafter, or within one month prior to the certification test, calibrate the chemiluminescent oxides of nitrogen analyzer on all normally used instrument ranges. Use the same flow rate as when analyzing samples. Proceed as follows:

(2) Zero the oxides of nitrogen analyzer with purified synthetic air or zero-grade nitrogen.

(3) Calibrate on each normally used operating range with NO-in-N₂calibration gases having nominal concentrations between 10 and 90 percent of that range. A minimum of six evenly spaced points covering at least 80 percent of the 10 to 90 range (64 percent) is required (see following table).

(d) The initial and periodic interference, system check, and calibration test procedures specified in 40 CFR part 1065, subpart D, may be used in lieu of the procedures specified in this section.

(a) The efficiency of the converter used for the conversion of NO₂to NO is tested as given in paragraphs (a)(1) through (a)(8) of this section.

(1) Using the test setup as shown in Figure 1 in Appendix B of this subpart (see also §90.318 of this chapter) and the procedure described in paragraphs (a)(2) through (a)(8) of this section, test the efficiency of converters by means of an ozonator.

(2) Calibrate the HCLD or CLD in the most common operating range following the manufacturer's specifications using zero and span gas (the NO content of which must amount to about 80 percent of the operating range and the NO₂concentration of the gas mixture less than five percent of the NO concentration). The NO_Xanalyzer must be in the NO mode so that the span gas does not pass through the converter. Record the indicated concentration.

(4) Via a T-fitting, add oxygen continuously to the gas flow until the concentration indicated is about 20 percent less than the indicated calibration concentration given in paragraph (a)(2) of this section. Record the indicated concentration “c.” The ozonator is kept deactivated throughout the process.

(5) Activate the ozonator to generate enough ozone to bring the NO concentration down to about 20 percent (minimum 10 percent) of the calibration concentration given in paragraph (a)(2) of this section. Record the indicated concentration “d.”

Note: If, with the analyzer in the most common range, the NO_Xconverter can not give a reduction from 80 percent to 20 percent, then use the highest range which will give the reduction.

(6) Switch the NO analyzer to the NO_Xmode which means that the gas mixture (consisting of NO, NO₂, O₂and N₂) now passes through the converter. Record the indicated concentration “a.”

(7) Deactivate the ozonator. The mixture of gases described in paragraph (a)(6) of this section passes through the converter into the detector. Record the indicated concentration “b.”

(8) Switched to NO mode with the ozonator deactivated, the flow of oxygen or purified synthetic air is also shut off. The NO_Xreading of the analyzer may not deviate by more than ±five percent of the theoretical value of the figure given in paragraph (a)(2) of this section.

(b) The efficiency of the converter must be tested prior to each calibration of the NO_Xanalyzer.

(a) Prior to its initial use and monthly thereafter, or within one month prior to the certification test, calibrate the NDIR carbon dioxide analyzer as follows:

(1) Follow good engineering practices for instrument start-up and operation. Adjust the analyzer to optimize performance.

(2) Zero the carbon dioxide analyzer with either purified synthetic air or zero-grade nitrogen.

(3) Calibrate on each normally used operating range with carbon dioxide-in-N₂calibration or span gases having nominal concentrations between 10 and 90 percent of that range. A minimum of six evenly spaced points covering at least 80 percent of the 10 to 90 range (64 percent) is required (see following table).

(b) The initial and periodic interference, system check, and calibration test procedures specified in 40 CFR part 1065, subparts C and D, may be used in lieu of the procedures in this section.

(a) Detector optimization. If necessary, follow the instrument manufacturer's instructions for initial start-up and basic operating adjustments.

(b) Calibration curve. Develop a calibration curve for each range used as follows:

(2) Span the analyzer to give a response of approximately 90 percent of full-scale chart deflection.

(3) Recheck the zero response. If it has changed more than 0.5 percent of full scale, repeat the steps given in paragraphs (b)(1) and (b)(2) of this section.

(4) Record the response of calibration gases having nominal concentrations between 10 and 90 percent of full-scale concentration. A minimum of six evenly spaced points covering at least 80 percent of the 10 to 90 range (64 percent) is required (see following table).

(5) Generate a calibration curve. The calibration curve must be of fourth order or less, have five or fewer coefficients, and be of the form of the following equation (1) or (2). Include zero as a data point. Compensation for known impurities in the zero gas can be made to the zero-data point. The calibration curve must fit the data points within two percent of point or one percent of full scale, whichever is less.

(i) A calibration curve conforming to paragraph (b)(5) of this section exists; or,

(ii) The responses generated in paragraph (b)(4) of this section are within one percent of full scale or two percent of point, whichever is less, of the responses predicted by the calibration curve for the gases used in paragraph (b)(4) of this section.

(7) If multiple range analyzers are used, the lowest range used must meet the curve fit requirements below 15 percent of full scale.

(c) Linear calibration criteria. If any range is within two percent of being linear, a linear calibration may be used. To determine if this criterion is met:

(1) Perform a linear least-square regression on the data generated. Use an equation of the form y=mx, where x is the actual chart deflection and y is the concentration.

(2) Use the equation z=y/m to find the linear chart deflection (designated as z) for each calibration gas concentration (designated as y).

(3) Determine the linearity (designated as percent L) for each calibration gas by:

(4) The linearity criterion is met if the %L is less than ±two percent for each data point generated. For each emission test, use a calibration curve of the form Y=mx. The slope (designated as m) is defined for each range by the spanning process.

Calibrate other test equipment used for testing as often as required by the test equipment manufacturer or as necessary according to good engineering practice.

(a) Prior to initial use and after major repairs, verify that each analyzer complies with the specifications given in Table 2 in Appendix A of this subpart.

(b) If a stainless steel NO₂to NO converter is used, condition all new or replacement converters. The conditioning consists of either purging the converter with air for a minimum of four hours or until the converter efficiency is greater than 90 percent. The converter must be at operational temperature while purging. Do not use this procedure prior to checking converter efficiency on in-use converters.

(a) Vacuum side leak check. (1) Check any location within the analysis system where a vacuum leak could affect the test results.

(2) The maximum allowable leakage rate on the vacuum side is 0.5 percent of the in-use flow rate for the portion of the system being checked. The analyzer flows and bypass flows may be used to estimate the in-use flow rates.

(3) The sample probe and the connection between the sample probe and valve V2, see Figure 1 in Appendix B of subpart E of this part, may be excluded from the leak check.

(b) Pressure-side leak check. Substantial leaks of the sample on the pressure side of the system may impact sample integrity if the leaks are of sufficient magnitude. As a safety precaution, good engineering practice would require that manufacturers perform periodic pressure-side leak checks of the sampling system. The recommended maximum leakage rate on the pressure side is five percent of the in-use flow rate.

(a) Gases present in the exhaust other than the one being analyzed can interfere with the reading in several ways. Positive interference occurs in NDIR and PMD instruments when the interfering gas gives the same effect as the gas being measured, but to a lesser degree. Negative interference occurs in NDIR instruments by the interfering gas broadening the absorption band of the measured gas, and in CLD instruments by the interfering gas quenching the radiation. The interference checks described in this section are to be made initially and after any major repairs that could affect analyzer performance.

(b) CO analyzer water and CO ₂ interference checks. Bubble through water at room temperature a CO₂span gas having a concentration of between 80 percent and 100 percent inclusive of full scale of the maximum operating range used during testing and record the analyzer response. For dry measurements, this mixture may be introduced into the sample system prior to the water trap. The analyzer response must not be more than one percent of full scale for ranges equal to or above 300 ppm or more than three ppm for ranges below 300 ppm.

(c) NO X analyzer quench check. The two gases of concern for CLD (and HCLD) analyzers are CO₂and water vapor. Quench responses to these two gases are proportional to their concentrations and, therefore, require test techniques to determine quench at the highest expected concentrations experienced during testing.

(1) NO _X analyzer CO ₂ quench check. (i) Pass a CO₂span gas having a concentration of 80 percent to 100 percent of full scale of the maximum operating range used during testing through the CO₂NDIR analyzer and record the value “a.”

(ii) Dilute the CO₂span gas approximately 50 percent with NO span gas and pass through the CO₂NDIR and CLD (or HCLD). Record the CO₂and NO values as “b” and “c” respectively.

(iii) Shut off the CO₂and pass only the NO span gas through the CLD (or HCLD). Record the NO value as “d.”

(2) NO _X analyzer water quench check. (i) This check applies to wet measurements only. An NO span gas having a concentration of 80 percent to 100 percent of full scale of a normal operating range is passed through the CLD (or HCLD) and the response recorded as “D”. The NO span gas is then bubbled through water at room temperature and passed through the CLD (or HCLD) and the analyzer's response recorded as AR. Determine and record the analyzer's absolute operating pressure and the bubbler water temperature. (It is important that the NO span gas contains minimal NO₂concentration for this check. No allowance for absorption of NO₂in water has been made in the following quench calculations.)

(ii) Calculations for water quench must consider dilution of the NO span gas with water vapor and scaling of the water vapor concentration of the mixture to that expected during testing. Determine the mixture's saturated vapor pressure (designated as Pwb) that corresponds to the bubbler water temperature. Calculate the water concentration (“Z1”, percent) in the mixture by the following equation:

(iii) Calculate the expected dilute NO span gas and water vapor mixture concentration (designated as D1) by the following equation:

Calibrate only the range of each analyzer used during the engine exhaust emission test prior to and after each test in accordance with the following:

(a) Make the calibration by using a zero gas and a span gas. The span gas value must be between 75 and 100 percent of the highest range used.

(b) Use the same analyzer(s) flow rate and pressure as that used during exhaust emission test sampling.

(d) If necessary clean and/or replace filter elements before calibration is made.

(1) Zero the analyzer using the appropriate zero gas. Adjust analyzer zero if necessary. Zero reading should be stable.

(2) Span the analyzer using the appropriate span gas for the range being calibrated. Adjust the analyzer to the calibration set point if necessary.

(4) If the response of the zero gas or span gas differs more than one percent of full scale at the highest range used, then repeat paragraphs (e)(1) through (3) of this section.

(a) Sample component surface temperature. For sampling systems which use heated components, use engineering judgment to locate the coolest portion of each component (pump, sample line section, filters, and so forth) in the heated portion of the sampling system that has a separate source of power or heating element. Monitor the temperature at that location. If several components are within an oven, then only the surface temperature of the component with the largest thermal mass and the oven temperature need be measured.

(b) If water is removed by condensation, monitor the sample gas temperature or sample dew point either within the water trap or downstream. It may not exceed 7 °C.

(a) The accuracy of measurements must be such that the maximum tolerances shown in Table 2 in Appendix A of this subpart are not exceeded.

(b) All equipment and analyzers must be calibrated according to the frequencies shown in Table 2 in Appendix A of this subpart.

(e) At least monthly, or after any maintenance which could alter calibration, perform the following calibrations and checks.

(2) Verify that the automatic data collection system (if used) meets the requirements found in Table 2 in Appendix A of this subpart.

(3) Check the fuel flow measurement instrument to insure that the specifications in Table 2 in Appendix A of this subpart are met.

(f) Verify that all NDIR analyzers meet the water rejection ratio and the CO₂rejection ratio as specified in §90.325.

(g) Verify that the dynamometer test stand and power output instrumentation meet the specifications in Table 2 in Appendix A of this subpart.

(a) Oven characteristics. The oven used for thermally stressing the test catalyst must be capable of maintaining a temperature of 500 ±5 °C and 1000 ±10 °C.

(b) Evaluation gas composition. (1) A synthetic exhaust gas mixture is used for evaluating the effect of thermal stress on catalyst conversion efficiency.

(c) Phase 2 engines. The catalyst thermal stress test is not required for engine families certified to the Phase 2 standards.

Table 1—Symbols Used in Subpart D

Symbol	Term	Unit
CO	Carbon monoxide
CO₂	Carbon dioxide
NO	Nitric oxide
NO₂	Nitrogen dioxide
NO_X	Oxides of nitrogen
O₂	Oxygen
conc	Concentration (ppm by volume)	ppm
f	Engine specific parameter considering atmospheric conditions
F_FCB	Fuel specific factor for the carbon balance calculation
F_FD	Fuel specific factor for exhaust flow calculation on dry basis
F_FH	Fuel specific factor representing the hydrogen to carbon ratio
F_FW	Fuel specific factor for exhaust flow calculation on wet basis
G_AIRW	Intake air mass flow rate on wet basis	kg/h
G_AIRD	Intake air mass flow rate on dry basis	kg/h
G_EXHW	Exhaust gas mass flow rate on wet basis	kg/h
G_Fuel	Fuel mass flow rate	kg/h
H	Absolute humidity (water content related to dry air)	gr/kg
i	Subscript denoting an individual mode
K_H	Humidity correction factor
L	Percent torque related to maximum torque for the test mode	percent
mass	Pollutant mass flow	g/h
n_d,i	Engine speed (average at the i'th mode during the cycle)	1/min
P_s	Dry atmospheric pressure	kPa
P_d	Test ambient saturation vapor pressure at ambient temperature	kPa
P	Gross power output uncorrected	kW
P_AUX	Declared total power absorbed by auxiliaries fitted for the test	kW
P_M	Maximum power measured at the test speed under test conditions	kW
P_i	P_i= P_M,i+ P_AUX,i
P_B	Total barometric pressure (average of the pre-test and post-test values)	kPa
R_a	Relative humidity of the ambient air	percent
T	Absolute temperature at air inlet	C
T_be	Air temperature after the charge air cooler (if applicable) (average)	C
T_clout	Coolant temperature outlet (average)	C
T_Dd	Absolute dew point temperature	C
T_d,i	Torque (average at the i'th mode during the cycle)	N-m
T_SC	Temperature of the intercooled air	C
T_ref.	Reference temperature	C
V_EXHD	Exhaust gas volume flow rate on dry basis	m³/h
V_AIRW	Intake air volume flow rate on wet basis	m³/h
P_B	Total barometric pressure	kPa
V_EXHW	Exhaust gas volume flow rate on wet basis	m³/h
WF	Weighing factor
WF_E	Effective weighing factor

Table 2—Measurement Calibration Accuracy and Frequency

No.	Item	Permissible deviation from reading*		Calibration frequency
No.	Item	Non-idle	Idle	Calibration frequency
1	Engine speed	±2 %	Same	Monthly or within one month prior to the certification test.
2	Torque	±2 %		Monthly or within one month prior to the certification test.
3	Fuel consumption	±2 %	±5%	Monthly or within one month prior to the certification test.
4	Air consumption	±2 %	±5%	As required.
5	Coolant temperature	±2 °C	Same	As required.
6	Lubricant temperature	±2 °C	Same	As required.
7	Exhaust back pressure	±5 %	Same	As required.
8	Inlet depression	±5 %	Same	As required.
9	Exhaust gas temperature	±15 °C	Same	As required.
10	Air inlet temperature (combustion air)	±2 °C	Same	As required.
11	Atmospheric pressure	±0.5 %	Same	As required.
12	Humidity (combustion air) (relative)	±3.0 %	Same	As required.
13	Fuel temperature	±2 °C	Same	As required.
14	Temperature with regard to dilution system	±2 °C	Same	As required.
15	Dilution air humidity	±3 % absolute	Same	As required.
16	HC analyzer	±2 %**	Same	Monthly or within one month prior to the certification test.
17	CO analyzer	±2 %**	Same	Monthly or within one month prior to the certification test.
18	NO_Xanalyzer	±2 %**	Same	Monthly or within one month prior to the certification test.
19	NO_Xconverter check	90 %	Same	Monthly or within one month prior to the certification test.
20	CO₂analyzer	±2 %**	Same	Monthly or within one month prior to the certification test.

*All accuracy requirements pertain to the final recorded value which is inclusive of the data acquisition system.

**If reading is under 100 ppm then the accuracy shall be ±2 ppm.

Table 3—Test Fuel Specifications

Item	Property	Tolerances	Procedure (ASTM)¹
Sulfur, ppm max.	339		D 2622–92
Benzene, max. %	1.5		D 3606–92
RVP, psi	8.7	±0.2	D 5191–93a
Octane, R+M/2	87.3	±0.5	D 2699–92 D 2700–92
IBP, °C	32.8	±11.0	D 86–93
10 % point, °C	53.3	±5.5	D 86–93
50 % point, °C	103.3	±5.5	D 86–93
90 % point, °C	165.6	±5.5	D 86–93
End Point, max. °C	212.8		D 86–93
Phosphorus, g/liter, max.	0.02		D 3231–89
Lead, g/liter, max.	0.02
Manganese, g/liter, max.	0.004
Aromatics, %	32.0	±4.0	D 1319–89
Olefins, %	9.2	±4.0	D 1319–89
Saturates, %	Remainder		D 1319–89

¹All ASTM procedures in this table have been incorporated by reference. See §90.7.

Subpart E—Gaseous Exhaust Test Procedures

(a) This subpart describes the procedures to follow in order to perform exhaust emission tests on new nonroad spark-ignition engines and vehicles subject to the provisions of subpart A of part 90. Provisions specific to raw gas sampling are in §90.414 through §90.419, provisions specific to constant volume sampling are in §90.420 through §90.426. All other sections in this subpart apply to both raw gas sampling and constant volume sampling except where indicated otherwise.

(b) Requirements for emission test equipment and calibrating this equipment are found in subpart D of this part.

(c) Certain text in this subpart is identified as pertaining to Phase 1 or Phase 2 engines. Such text pertains only to engines of the specified Phase. If no indication of Phase is given, the text pertains to all engines, regardless of Phase.

(d) For Phase 2 Class I, Phase 2 Class I–B, and Phase 2 Class II natural gas fueled engines, use the equipment specified in 40 CFR part 1065, subparts D and E, to measure nonmethane hydrocarbon (NMHC) exhaust emissions from Phase 2 Class I, Phase 2 Class I–B, and Phase 2 Class II natural gas fueled engines.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999; 65 FR 24312, Apr. 25, 2000; 70 FR 40449, July 13, 2005]

(a) The test consists of prescribed sequences of engine operating conditions to be conducted on an engine dynamometer or equivalent load and speed measurement device. The exhaust gases generated during engine operation are sampled either raw or dilute and specific components are analyzed through the analytical system.

(b) The test is designed to determine the brake-specific emissions of hydrocarbons, carbon monoxide, carbon dioxide, and oxides of nitrogen and fuel consumption. For Phase 2 Class I-B, Class I, and Class II natural gas fueled engines the test is also designed to determine the brake-specific emissions of non-methane hydrocarbons. The test consists of three different test cycles which are application specific for engines which span the typical operating range of nonroad spark-ignition engines. Two cycles exist for Class I-B, I and II engines and one is for Class I-A, III, IV, and V engines (see §90.103(a) and §90.116(b) for the definitions of Class I-A, I-B, and I—V engines). The test cycles for Class I-B, I, and II engines consist of one idle mode and five power modes at one speed (rated or intermediate). The test cycle for Class I-A, III, IV, and V engines consists of one idle mode at idle speed and one power mode at rated speed. These procedures require the determination of the concentration of each pollutant, fuel flow, and the power output during each mode. The measured values are weighted and used to calculate the grams of each pollutant emitted per brake kilowatt hour (g/kW-hr).

(c)(1) When an engine is tested for exhaust emissions the complete engine must be tested, with all emission control devices installed and functioning.

(2) On air cooled engines, the cooling fan must be installed. For engines whose cooling fan serves a dual purpose, such as an air pump/blower, an external fan may be used to provide the engine with cooling air and the original cooling fan may be removed.

(d) All emission control systems installed on or incorporated in the application must be functioning during all procedures in this subpart. In case of component malfunction or failure, no maintenance is allowed without prior approval from the Administrator, in accordance with §90.119.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999; 65 FR 24312, Apr. 25, 2000]

(a) Record the information described in this section for each test, where applicable.

(4) Number of hours of operation accumulated on the engine prior to beginning the warm-up portion of the test (to the nearest tenth hour).

(8) All pertinent instrument information such as tuning, gain, serial numbers, detector number, and calibration curve(s). As long as this information is traceable, it may be summarized by system number or analyzer identification numbers.

(3) Barometric pressure; as an option, barometric pressure can be measured as a modal measurement instead of or in addition to a pre- and post-test measurement.

(4) Recorder chart or equivalent. Identify for each test segment zero traces for each range used, and span traces for each range used.

(d) Test data; modal. (1) Recorder chart or equivalent. Identify for each test mode the emission concentration traces and the associated analyzer range(s).

(6) For raw gas testing; fuel flow for each mode. Fuel flow measurement is not required for dilute testing, but is allowed. If the fuel flow measurement is a volume measurement system, record the fuel temperature in the measurement system for fuel density corrections to the mass flow rate. If the fuel temperature is within 3 °C of the calibration temperature, no density correction is required.

(e) Test data; post-test. (1) Recorder chart or equivalent. Identify the hang-up check.

(2) Recorder chart or equivalent. Identify the zero traces for each range used and the span traces for each range used.

(3) Total number of hours of operation accumulated on the engine (to the nearest tenth hour).

Measure or calculate, then record the engine parameters in table 1 in appendix A of this subpart.

(a) The engine manufacturer is liable for exhaust emission compliance over the full range of air inlet filter systems and exhaust muffler systems.

(b) The air inlet filter system and exhaust muffler system combination used on the test engine must be the systems expected to yield the highest emission levels.

(a) Engine service accumulation and stabilization procedure. Use the service accumulation procedure determined by the manufacturer for exhaust emission stabilizing of an engine, consistent with good engineering practice (see §90.118).

(1) The manufacturer determines, for each engine family, the number of hours at which the engine exhaust emission control system combination is stabilized for emission testing. However, this stabilization procedure may not exceed 12 hours. The manufacturer must maintain, and provide to the Administrator upon request, a record of the rationale used in making this determination. If the manufacturer can document that at some time prior to the full 12 hour service accumulation period the engine emissions are decreasing for the remainder of the 12 hours, the service accumulation may be completed at that time. The manufacturer may elect to accumulate 12 hours on each test engine within an engine family without making this determination.

(2) During service accumulation, the fuel and lubricants specified in §90.308 must be used.

(3) Engine maintenance during service accumulation is allowed only in accordance with §90.118.

(b) Engine pre-test preparation. (1) Drain and charge the fuel tank(s) with the specified test fuel (see §90.308(b)) to 50 percent of the tank's nominal capacity. If an external fuel tank is used, the engine fuel inlet system pressure must be typical of what the engine will see in use.

(2) An evaluation of the effects of test measurement systems on engine emissions shall be conducted using good engineering judgment to ensure that such test systems do not significantly impact exhaust emissions from the engine. For example, this would require evaluation of all types of emission sampling systems, and of fuel- and air-flow measurement systems for raw sampling. This can be accomplished by operating the engine at the highest engine torque value that will be encountered on the test cycle before and after such test systems are installed to ensure that the impact on measured torque is less than 5 percent. This may also be accomplished by measuring air-to-fuel ratio using a zirconia universal exhaust gas oxygen (UEGO) sensor to ensure that the impact on measured air-to-fuel ratio is less than 5 percent at the highest engine torque value that will be encountered on the test cycle before and after such test systems are installed. The impact of air- and fuel-flow measurement systems may be evaluated based on an engineering analysis of the impact of the change in pressure induced on air-intake pressure and fuel supply pressure by these measurement systems. While this would typically be done before testing, it may also be done as a post-test verification.

(c) Analyzer pre-test procedures. (1) If necessary, warm up and stabilize the analyzer(s) before calibrations are performed.

(2) Replace or clean the filter elements and then leak check the system as required by §90.324(a). If necessary, allow the heated sample line, filters, and pumps to reach operating temperature.

(i) If necessary, check the sample-line temperature. Heated FID sample line temperature must be maintained between 110 °C and 230 °C; a heated NO_Xsample line temperature must be maintained between 60 °C and 230 °C.

(ii) Check that the system response time has been accounted for prior to sample collection data recording.

(4) Check analyzer zero and span before and after each test at a minimum. Further, check analyzer zero and span any time a range change is made or at the maximum demonstrated time span for stability for each analyzer used.

[60 FR 34598, July 3, 1995, as amended at 65 FR 24312, Apr. 25, 2000; 70 FR 40449, July 13, 2005]

(a) Engine and dynamometer start-up. (1) Only adjustments in accordance with §90.119 may be made to the test engine prior to starting a test.

(2) If necessary, warm up the dynamometer as recommended by the dynamometer manufacturer or use good engineering practice.

(3) For Phase 1 engines, at the manufacturer's option, the engine can be run with the throttle in a fixed position or by using the engine's governor (if the engine is manufactured with a governor). In either case, the engine speed and load must meet the requirements specified in paragraph (b)(12) of this section. For Phase 2 Class I, Phase 2 Class I-B, and Phase 2 Class II engines equipped with an engine speed governor, the governor must be used to control engine speed during all test cycle modes except for Mode 1 or Mode 6, and no external throttle control may be used that interferes with the function of the engine's governor; a controller may be used to adjust the governor setting for the desired engine speed in Modes 2–5 or Modes 7–10; and during Mode 1 or Mode 6 fixed throttle operation may be used to determine the 100 percent torque value.

(i) Operate the engine at a power greater than or equal to 50 percent maximum power at the appropriate speed (rated or intermediate) for 20 minutes;

(ii) Option. If the engine has been operating on service accumulation for a minimum of 40 minutes, the service accumulation may be substituted for step (i).

(4) Start the test cycle (see §90.410) within five minutes of the completion of the steps required by paragraph (b)(2) of this section.

(5) Modes are to be performed in the numerical order specified for the appropriate test cycle (see “Mode Points” Table 2 in Appendix A of this subpart).

(6) For Class I, I-B, and II engines, during the maximum torque mode calculate the torque corresponding to 75, 50, 25, and 10 percent of the maximum observed torque (see Table 2 in Appendix A to this subpart).

(7) Once engine speed and load are set for a mode, run the engine for a sufficient period of time to achieve thermal stability. At the manufacturer's option, determine and document the appropriate criterion for thermal stability for each engine family. If the manufacture chooses not to make this determination, an acceptable alternative is to run the engine at each mode until the cylinder head temperature remains within a 10 °C bandwidth for three minutes. Cylinder head temperature may be measured at the base of the spark plug. After stability is achieved, emission measurements are initiated.

(8) Record all modal data specified in §90.405(d) for a minimum time period of the last two minutes of each mode. Longer averaging periods are acceptable, but the data averaged must be from a continuous time period. The duration of time during which this data is recorded is referred to as the “sampling period.” The data collected during the sampling period is used for modal emission calculations.

(9) Continuously record the analyzer's response to the exhaust gas during each mode.

(11) If a delay of more than one hour occurs between the end of one mode and the beginning of another mode, the test is void and must be restarted at paragraph (b)(1) of this section.

(12) The engine speed and load must be maintained within the requirements of §90.410 during the sampling period of each mode. If this requirement is not met, the mode is void and must be restarted.

(13) If at any time during a mode the test equipment malfunctions or the specifications in §90.410 can not be met, the test is void and must be aborted. Corrective action should be taken and the test restarted.

(14) If at any time during an operating mode the engine stalls, restart the engine immediately and continue the test starting with the steps required by paragraph (b)(6) of this section. If the engine will not restart within five minutes the test is void. If maintenance is required on the engine, advance approval from the Administrator is required as specified in §90.119. After corrective action is taken, the engine may be rescheduled for testing. Report the reason for the malfunction (if determined) and the corrective action taken.

(15) Fuel flow and air flow during the idle condition may be determined just prior to or immediately following the dynamometer sequence, if longer times are required for accurate measurements. If the dilute sampling method (Constant Volume Sampling) is used, neither fuel flow nor air flow measurements are required.

(2) Each analyzer range that may be used during a test mode must have the zero and span responses recorded prior to the start of the test. Only the range(s) used to measure the emissions during the test is required to have its zero and span recorded after the completion of the test. Depending on the stability of each individual analyzer, more frequent zero checks or spans between modes may be necessary.

(6) If, during the emission measurement portion of a mode, the value of the gauges downstream of the NDIR analyzer(s) G3 or G4 (see Figure 1 in Appendix B of this subpart), differs by more than ±0.5kPa from the pretest value, the test mode is void.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999; 65 FR 24313, Apr. 25, 2000; 70 FR 40449, July 13, 2005]

(a) Follow the appropriate 6-mode test cycle for Class I, I-B and II engines and 2-mode test cycle for Class I-A, III, IV, and V engines when testing spark-ignition engines (see Table 2 in Appendix A of this subpart).

(b) For Phase 1 engines and Phase 2 Class I-A, III, IV, and V, and Phase 2 Class I and II engines not equipped with an engine speed governor, during each non-idle mode, hold both the specified speed and load within ±five percent of point. During the idle mode, hold speed within ±ten percent of the manufacturer's specified idle engine speed. For Phase 2 Class I, I-B, and II engines equipped with an engine speed governor, during Mode 1 or Mode 6 hold both the specified speed and load within ±five percent of point, during Modes 2–3, or Modes 7–8 hold the specified load with ±five percent of point, during Modes 4–5 or Modes 9–10, hold the specified load within the larger range provided by ±0.27 Nm (±0.2 lb-ft), or ±ten (10) percent of point, and during the idle mode hold the specified speed within ±ten percent of the manufacturer's specified idle engine speed (see Table 1 in Appendix A of this subpart for a description of test Modes). The use of alternative test procedures is allowed if approved in advance by the Administrator.

(c) If the operating conditions specified in paragraph (b) of this section for Class I, I-B, and II engines using Mode Points 2, 3, 4, and 5 cannot be maintained, the Administrator may authorize deviations from the specified load conditions. Such deviations may not exceed 10 percent of the maximum torque at the test speed. The minimum deviations, above and below the specified load, necessary for stable operation shall be determined by the manufacturer and approved by the Administrator prior to the test run.

(d) Do not include power generated during the idle mode, Mode 11, in the calculation of emission results.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999; 65 FR 24313, Apr. 25, 2000]

(a) Perform a HC hang-up check within 60 seconds of the completion of the last mode in the test. Use the following procedure:

(1) Introduce a zero gas or room air into the sample probe or valve V2 (see Figure 2 in Appendix B of Subpart D) to check the “hangup zero” response. Simultaneously start a time measurement.

(3) Within four minutes of beginning the time measurement in paragraph (a)(1) of this section, the difference between the zero gas response and the hang-up zero response may not be greater than 5.0 percent of full scale or 10 ppmC, whichever is greater.

(b) Begin the analyzer span checks within six minutes after the completion of the last mode in the test. Record for each analyzer the zero and span response for each range used during the preceding test or test segment.

(c) If during the test, the filter element(s) were replaced or cleaned, a vacuum check must be performed per §90.324(a) immediately after the span checks. If the vacuum side leak check does not meet the requirements of §90.324(a), the test is void.

(e) For a valid test, the analyzer drift between the before-segment and after-segment span checks for each analyzer must meet the following requirements:

(1) The span drift (defined as the change in the difference between the zero response and the span response) may not exceed two percent of full-scale chart deflection for each range used.

(2) The zero response drift may not exceed two percent of full-scale chart deflection for each range used above 155 ppm (or ppm C), or three percent of full-scale chart deflection for each range below 155 ppm (or ppm C).

(a) A computer or any other automatic data collection (ADC) device(s) may be used as long as the system meets the requirements of this subpart.

(b) Determine from the data collection records the analyzer responses corresponding to the end of each mode.

(d) Determine the final value for power by averaging the individually calculated power points for each value of speed and torque recorded during the sampling period. As an alternative, the final value for power can be calculated from the average values for speed and torque, collected during the sampling period.

(e) Determine the final value for CO₂, CO, HC, and NO_Xconcentrations by averaging the concentration of each point taken during the sample period for each mode.

(a) Automatic data collection equipment requirements. The analyzer response may be read by automatic data collection (ADC) equipment such as computers, data loggers, and so forth. If ADC equipment is used, the following is required:

(1) For dilute grab (“bag”) sample analysis, the analyzer response must be stable at greater than 99 percent of the final reading for the dilute exhaust sample. The ADC must store a single value representing the average chart deflection over a 10-second stabilized period. Alternatively, the ADC may store the individual instantaneous chart deflections collected over a 10-second stabilized period.

(2) For continuous analysis systems, the ADC must store a single value representing the average integrated concentration over a measurement period. Alternatively, the ADC may store the individual instantaneous values collected during the measurement period.

(3) The chart deflections or average integrated concentrations required in paragraphs (a)(1) and (a)(2) of this section may be stored on long-term computer storage devices such as computer tapes, storage discs, punch cards, or they may be printed in a listing for storage. In either case a chart recorder is not required and records from a chart recorder, if they exist, need not be stored.

(4) If ADC equipment is used to interpret analyzer values, the ADC equipment is subject to the calibration specifications of the analyzer as if the ADC equipment is part of analyzer system.

(b) Data records from any one or a combination of analyzers may be stored as chart recorder records.

(3) Measure and record HC, CO, CO₂, and NO_Xconcentrations in the exhaust sample bag(s) and background sample bag(s) using the same flow rates and pressures.

(4) Good engineering practice dictates that exhaust emission sample bag analyzer readings below 15 percent of full scale should generally not be used.

(5) A post-analysis zero and span calibration check of each range must be performed and the values recorded. The number of events that may occur between the pre- and post-checks is not specified. However, the difference between pre-analysis zero and span values (recorded in paragraph (c)(2) or (c)(3) of this section) versus those recorded for the post-analysis check may not exceed the zero drift limit or the span drift limit of two percent of full-scale chart deflection for any range used. Otherwise the analysis is void.

(d) Continuous sample analysis. For continuous sample analysis perform the following procedure:

(2) Leak check portions of the sampling system that operate at negative gauge pressures when sampling and allow heated sample lines, filters, pumps, and so forth to stabilize at operating temperature.

(ii) Flow zero gas through the overflow sampling system. Check the analyzer response.

(iii) If the overflow zero response exceeds the analyzer zero response by two percent or more of the FID or HFID full-scale deflection, hang-up is indicated and corrective action must be taken (see paragraph (e) of this section).

(iv) The complete system hang-up check specified in paragraph (e) of this section is recommended as a periodic check.

(4) If necessary, recalibrate analyzer using the procedure specified in paragraph (d)(1) of this section.

(5) Good engineering practice dictates that analyzers used for continuous analysis should be operated such that the measured concentration falls between 15 percent and 100 percent of full scale.

(7) Collect background HC, CO, CO₂, and NO_Xin a sample bag (for dilute exhaust sampling only, see §90.422).

(8) Perform a post-analysis zero and span check for each range used at the conditions specified in paragraph (d)(1) of this section. Record these responses as the post-analysis values.

(9) Neither the zero drift nor the span drift between the pre-analysis and post-analysis checks on any range used may exceed three percent for HC, or two percent for NO_X. CO, and CO₂, of full-scale chart deflection, or the test is void. (If the HC drift is greater than three percent of full-scale chart deflection, HC hang-up is likely.)

(10) Determine background levels of HC, NO_X. CO, or CO₂(for dilute exhaust sampling only) by the grab (“bag”) technique outlined in paragraph (c) of this section.

(e) Hydrocarbon hang-up. If HC hang-up is indicated, the following procedure may be performed:

(5) If the difference between the readings obtained is two ppm or more, clean the sample probe and the sample line.

(6) Reassemble the sample system, heat to specified temperature, and repeat the procedure in paragraphs (e)(1) through (e)(5) of this section.

(a) Schematic drawing. An example of a sampling and analytical system which may be used for testing under this subpart is shown in Figure 2 in appendix B of subpart D. All components or parts of components that are wetted by the sample or corrosive calibration gases must be either chemically cleaned stainless steel or inert material (e.g., polytetrafluoroethylene resin). The use of “gauge savers” or “protectors” with nonreactive diaphragms to reduce dead volumes is permitted.

(b) Sample probe. (1) The sample probe must be a straight, closed end, stainless steel, multi-hole probe. The inside diameter may not be greater than the inside diameter of the sample line +0.03 cm. The wall thickness of the probe may not be greater than 0.10 cm. The fitting that attaches the probe to the exhaust pipe must be as small as practical in order to minimize heat loss from the probe.

(2) The probe must have a minimum of three holes. The spacing of the radial planes for each hole in the probe must be such that they cover approximately equal cross-sectional areas of the exhaust duct. See Figure 2 in appendix B of subpart D. The angular spacing of the holes must be approximately equal. The angular spacing of any two holes in one plane may not be 180° ±20° (i.e., section view C-C of Figure 2 in appendix B of subpart D). The holes should be sized such that each has approximately the same flow. If only three holes are used, they may not all be in the same radial plane.

(3) The exhaust gas probe must be located in a position which yields a well mixed, homogenous sample of the engine exhaust. The probe must extend radially across the exhaust gas stream. The probe must pass through the approximate center and must extend across at least 80 percent of the exhaust gas stream. The exact position of the probe may vary from engine family to engine family.

(c) Mixing chamber. The exhaust mixing chamber is located in the exhaust system between the muffler and the sample probe. The mixing chamber is an optional component of the raw gas sampling equipment.

(1) The internal volume of the mixing chamber may not be less than ten times the cylinder displacement of the engine under test. The shape of the mixing chamber must be such that it provides a well mixed, homogenous sample at the sample probe location.

(3) Maintain the inner surface of the mixing chamber at a minimum temperature of 179 °C.

(4) Thermocouple temperature monitoring of the mixing chamber inner surface is required to assure wall temperatures specified in paragraph (c)(3) of this section. The temperature measurement must be accurate to within ±5 °C.

(5) The sample probe must extend radially across the exit of the mixing chamber. The probe must pass through the approximate center and must extend across at least 80 percent of the diameter of the exit. The exact position of the probe may vary from engine family to engine family. The probe must be located in a position which yields a well mixed, homogenous sample of the exhaust.

(d) Sample transfer line. (1) The maximum inside diameter of the sample line may not exceed 1.32 cm.

(2) If valve V2 in Figure 1 of appendix B of this subpart is used, the sample probe must connect directly to valve V2. The location of optional valve V2 in Figure 1 of appendix B of subpart D may not be greater than 1.22 m from the exhaust duct.

(3) The location of optional valve V16, Figure 1 of appendix B of this subpart, may not be greater than 61 cm from the sample pump. The leakage rate for this section on the pressure side of the sample pump may not exceed the leakage rate specification for the vacuum side of the pump.

(e) Venting. All vents, including analyzer vents, bypass flow, and pressure relief vents, of regulators should be vented in such a manner as to avoid endangering personnel in the immediate area.

(f) Any variation from the specifications in this subpart, including performance specifications and emission detection methods, may be used only with prior approval by the Administrator.

(g) Additional components, such as instruments, valves, solenoids, pumps, switches, and so forth, may be employed to provide additional information and coordinate the functions of the component systems.

(h) The following requirements must be incorporated in each system used for raw testing under this subpart.

(1) Take the sample for all components with one sample probe and split it internally to the different analyzers.

(2) Heat the sample transport system from the engine exhaust pipe to the HC analyzer for the raw gas sampling method as indicated in Figure 1 in appendix B of this subpart. The NO_Xanalyzer for the raw gas sampling method may be heated as indicated in Figure 1 in appendix B of this subpart. The HC analyzer and the NO_Xanalyzer for the dilute sampling method may be heated as indicated in Figure 1 in appendix B of this subpart.

Fit all heated sampling lines with a heated filter to extract solid particles from the flow of gas required for analysis. The sample line for HC measurement must be heated. The sample line for CO, CO₂and NO_Xanalysis may be heated or unheated.

(a) If used, the engine intake air flow measurement method used must have a range large enough to accurately measure the air flow over the engine operating range during the test. Overall measurement accuracy must be two percent of full-scale value of the measurement device for all modes except the idle mode. For the idle mode, the measurement accuracy must be ±five percent or less of the full-scale value. The Administrator must be advised of the method used prior to testing.

(b) When an engine system incorporates devices that affect the air flow measurement (such as air bleeds, air injection, pulsed air, and so forth) resulting in understated exhaust emission results, make corrections to the exhaust emission results to account for such effects.

(a) Fuel flow measurement is required only for raw testing. Fuel flow is allowed for dilute testing.

(b) The fuel flow measurement instrument must have a minimum accuracy of one percent of full-scale flow rate for each measurement range used. An exception is allowed for the idle mode. For this mode, the minimum accuracy is ±five percent of full-scale flow rate for the measurement range used. The controlling parameters are the elapsed time measurement of the event and the weight or volume measurement. You may apply the accuracy specifications of 40 CFR part 1065, subpart C, instead of those in this paragraph (b).

For the evaluation of the gaseous emissions recording, record the last two minutes of each mode and determine the average values for HC, CO, CO₂and NO_Xduring each mode from the average concentration readings determined from the corresponding calibration data. Longer averaging times are acceptable, but the reported sampling period must be a continuous set of data.

(a) Derive the final weighted brake-specific mass emission rates (g/kW-hr) through the steps described in this section.

(b) Air and fuel flow method. If both air and fuel flow mass rates are measured, use the following equations to determine the weighted emission values for the test engine:

M_HCexh= Molecular weight of hydrocarbons in the exhaust, see the following equation:

K = correction factor to be used when converting dry measurements to a wet basis. Therefore, wet concentration=dry concentration × K,

DH₂= H₂percent concentration in exhaust, dry, calculated from the following equation:

(c) Fuel flow method. The following equations are to be used when fuel flow is selected as the basis for mass emission calculations using the raw gas method.

M_HCexh= Molecular weight of hydrocarbons in the exhaust, see following equation:

K = correction factor to be used when converting dry measurements to a wet basis. Therefore, wet concentration=dry concentration×K, where K is:

DH₂= H₂percent concentration in exhaust, dry, calculated from the following equation:

K_H= Factor for correcting the effects of humidity on NO₂formation for 4-stroke gasoline small engines, as follows:

(d) Calculate the final weighted brake-specific emission rate for each individual gas component using the following equation:

P_i= Gross average power generated during mode i [kW], calculated from the following equation,

(a) A dilute exhaust sampling system is designed to directly measure the true mass of emissions in engine exhaust without the necessity of measuring either fuel flow or intake air flow. This is accomplished by diluting the exhaust produced by a test engine with ambient background air and measuring the total diluted exhaust flow rate and the concentration of emissions within the dilute flow. Total mass flow of an emission is then easily calculated.

(b) A constant volume sampler (CVS) is typically used to control the total amount of dilute flow through the system. As the name implies, a CVS restricts flow to a known value dependent only on the dilute exhaust temperature and pressure.

(c) For the testing described in this subpart, a CVS must consist of: a mixing tunnel into which the engine exhaust and dilutant (background) air are dumped; a dilute exhaust flow metering system; a dilute exhaust sample port; a background sample port; a dilute exhaust sampling system; and a background sampling system.

(1) Mixing tunnel. The mixing tunnel must be constructed such that complete mixing of the engine exhaust and background air is assured prior to the sampling probe.

(2) Exhaust flow metering system. A dilute exhaust flow metering system must be used to control the total flow rate of the dilute engine exhaust as described in §90.421.

(3) Exhaust sample port. A dilute exhaust sample port must be located in or downstream of the mixing tunnel at a point where complete mixing of the engine exhaust and background air is assured.

(4) Background sample port. A dilute exhaust sample port must be located in the stream of background air before it is mixed with the engine exhaust. The background probe must draw a representative sample of the background air during each sampling mode.

(5) Exhaust sampling system. The dilute exhaust sampling system controls the flow of samples from the mixing tunnel to the analyzer system. This could be either a continuous sampling system or grab (bag) sampling system. If a critical flow venturi (CFV) is used on the dilute exhaust sample probe, this system must assure that the sample CFV is in choke flow during testing. If no CFV is used, this system must assure a constant volumetric flow rate through the dilute exhaust sample probe or must incorporate electronic flow compensation.

(6) Background sampling system. The background sampling system controls the flow of samples from the background air supply to the analyzer system. This could be either a continuous sampling system or grab (bag) sampling system. This system must assure a constant volumetric flow rate through the background sample probe.

(a) General. The exhaust gas sampling system described in this section is designed to measure the true mass of gaseous emissions in the exhaust of nonroad small spark-ignition engines. This system utilizes the Constant Volume Sampling (CVS) concept (described in §90.420) of measuring mass emissions of HC, NO_X. CO, and CO₂. Grab sampling for individual modes is an acceptable method of dilute testing for all constituents, HC, NO_X. CO, and CO₂. Continuous dilute sampling is not required for any of the exhaust constituents, but is allowable for all. Heated sampling is not required for any of the constituents, but is allowable for HC and NO_X. The mass of gaseous emissions is determined from the sample concentration and total flow over the test period. As an option, the measurement of total fuel mass consumed over a cycle may be substituted for the exhaust measurement of CO₂. General requirements are as follows:

(1) This sampling system requires the use of a Positive Displacement Pump—Constant Volume Sampler (PDP-CVS) system with a heat exchanger, or a Critical Flow Venturi—Constant Volume Sampler (CFV-CVS) system with CFV sample probes and/or a heat exchanger or electronic flow compensation. Figure 2 in Appendix B of this subpart is a schematic drawing of the PDP-CVS system. Figure 3 in Appendix B of this subpart is a schematic drawing of the CFV-CVS system.

(i) Grab sampling (see §90.420, and Figure 2 or Figure 3 in Appendix B of this subpart) and analytical capabilities (see §90.423, and Figure 4 in Appendix B of this subpart), or

(ii) Continuously integrated measurement of diluted HC meeting the minimum requirements and technical specifications contained in paragraph (b)(2) of this section.

(iii) The dilute HC analytical system for nonroad small spark-ignition engines does not require a heated flame ionization detector (HFID).

(iv) If used, the HFID sample must be taken directly from the diluted exhaust stream through a heated probe and integrated continuously over the test cycle.

(v) The heated probe must be located in the sampling system far enough downstream of the mixing area to ensure a uniform sample distribution across the CVS duct at the sampling zone.

(i) Grab sampling (see §90.420, and Figure 2 or Figure 3 in Appendix B of this subpart) and analytical capabilities (see §90.423, and Figure 4 in Appendix B of this subpart), or

(ii) Continuously integrated measurement of diluted CO and CO₂meeting the minimum requirements and technical specifications contained in paragraph (b)(4) of this section.

(i) Grab sampling (see §90.420, and Figure 2 or Figure 3 in Appendix B of this subpart) and analytical capabilities (see §90.423, and Figure 4 in Appendix B of this subpart), or

(ii) A continuously integrated measurement of diluted NO_Xmeeting the minimum requirements and technical specifications contained in paragraph (b)(4) of this section.

(5) Since various configurations can produce equivalent results, exact conformance with these drawings is not required. Additional components such as instruments, valves, solenoids, pumps, and switches may be used to provide additional information and coordinate the functions of the component systems. Other components, such as snubbers, which are not needed to maintain accuracy on some systems, may be excluded if their exclusion is based upon good engineering judgment.

(6) Other sampling and/or analytical systems may be used if shown to yield equivalent results and if approved in advance by the Administrator.

(b) Component description. The components necessary for exhaust sampling must meet the following requirements:

(1) Exhaust dilution system. The PDP-CVS must conform to all of the requirements listed for the exhaust gas PDP-CVS in §90.420 of this chapter. The CFV-CVS must conform to all of the requirements listed for the exhaust gas CFV-CVS in §90.420 of this chapter. In addition, the CVS must conform to the following requirements:

(i) The flow capacity of the CVS must be sufficient to maintain the diluted exhaust stream in the dilution system at a temperature of 190 °C or less at the sampling zone for hydrocarbon measurement and as required to prevent condensation at any point in the dilution system. Gaseous emission samples may be taken directly from this sampling point.

(ii) For the CFV-CVS, either a heat exchanger or electronic flow compensation is required (see Figure 3 in Appendix B of this subpart).

(iii) For the CFV-CVS when a heat exchanger is used, the gas mixture temperature, measured at a point immediately ahead of the critical flow venturi, must be within ±11 °C of the average operating temperature observed during the test with the simultaneous requirement that condensation does not occur. The temperature measuring system (sensors and readout) must have an accuracy and precision of ±2 °C. For systems utilizing a flow compensator to maintain proportional flow, the requirement for maintaining constant temperature is not necessary.

(2) Continuous HC measurement system. (i) The continuous HC sample system (as shown in Figure 2 or 3 in Appendix B of this subpart) uses an “overflow” zero and span system. In this type of system, excess zero or span gas spills out of the probe when zero and span checks of the analyzer are made.

(ii) No other analyzers may draw a sample from the continuous HC sample probe, line, or system, unless a common sample pump is used for all analyzers and the sample line system design reflects good engineering practice.

(iii) The overflow gas flow rates into the sample line must be at least 105 percent of the sample system flow rate.

(iv) The overflow gases must enter the sample line as close as practical to the outside surface of the CVS duct or dilution system.

(v) The continuous HC sampling system consists of a probe (which for a HFID analyzer must raise the sample to the specified temperature) and, where used, a sample transfer system (which for a HFID must maintain the specified temperature). The HFID continuous hydrocarbon sampling system (exclusive of the probe) must:

(A) Maintain a wall temperature of 190 ±11 °C as measured at every separately controlled heated component (that is, filters, heated line sections), using permanent thermocouples located at each of the separate components.

(B) Have a wall temperature of 190 ±11 °C over its entire length. The temperature of the system is demonstrated by profiling the thermal characteristics of the system where possible at initial installation and after any major maintenance performed on the system. The profiling is to be accomplished using the insertion thermocouple probing technique. The system temperature must be monitored continuously during testing at the locations and temperature described in §90.421(b)(2).

(C) Maintain a gas temperature of 190 ±11 °C immediately before the heated filter and HFID. Determine these gas temperatures by a temperature sensor located immediately upstream of each component.

(A) Is defined as the first 25.4 to 76.2 cm of the continuous hydrocarbon sampling system.

(C) Is installed in the dilution system at a point where the dilution air and exhaust are well mixed and provide a homogenous mixture.

(D) Is sufficiently distant (radially) from other probes and the system wall so as to be free from the influence of any wakes or eddies.

(E) For a continuous HFID sample probe, the probe must increases the gas stream temperature to 190 ±11 °C at the exit of the probe. Demonstrate the ability of the probe to accomplish this using the insertion thermocouple technique at initial installation and after any major maintenance. Demonstrate compliance with the temperature specification by continuously recording during each test the temperature of either the gas stream or the wall of the sample probe at its terminus.

(vii) The response time of the continuous measurement system must be taken into account when logging test data.

(3) Sample mixing. (i) Configure the dilution system to ensure a well mixed, homogeneous sample prior to the sampling probe(s).

(ii) Make the temperature of the diluted exhaust stream inside the dilution system sufficient to prevent water condensation.

(iii) Direct the engine exhaust downstream at the point where it is introduced into the dilution system.

(4) Continuously integrated NO _X , CO, and CO ₂ measurement systems —(i) Sample probe requirements:

(A) The sample probe for continously intergrated NO_X. CO, and CO₂must be in the same plane as the continuous HC probe, but sufficiently distant (radially) from other probes and the tunnel wall so as to be free from the influences of any wakes or eddies.

(B) The sample probe for continously intergrated NO_X. CO, and CO₂must be heated and insulated over the entire length, to prevent water condensation, to a minimum temperature of 55 °C. Sample gas temperature immediately before the first filter in the system must be at least 55 °C.

(ii) Conform to the continuous NO_X, CO, or CO₂sampling and analysis system to the specifications of 40 CFR 1065.145, with the following exceptions and revisions:

(A) Heat the system components requiring heating only to prevent water condensation, the minimum component temperature is 55 °C.

(B) Coordinate analysis system response time with CVS flow fluctuations and sampling time/test cycle offsets, if necessary.

(C) Use only analytical gases conforming to the specifications of §90.312 of this subpart for calibration, zero and span checks.

(D) Use a calibration curve conforming to §90.321 for CO and CO₂and §90.318 for NO_Xfor any range on a linear analyzer below 155 ppm.

(iii) Convert the chart deflections or voltage output of analyzers with non-linear calibration curves to concentration values by the calibration curve(s) specified in §90.321 of this chapter before flow correction (if used) and subsequent integration takes place.

(a) Background samples are produced by drawing a sample of the dilution air during the exhaust collection phase of each test cycle mode.

(1) An individual background sample may be produced and analyzed for each mode. Hence, a unique background value will be used for the emission calculations for each mode.

(2) Alternatively, a single background sample may be produced by drawing a sample during the collection phase of each test cycle mode. Hence, a single cumulative background value will be used for the emission calculations for each mode.

(b) For analysis of the individual sample described in paragraph (a)(1) of this section, a single value representing the average chart deflection over a 10-second stabilized period must be stored. All readings taken during the data logging period must be stable within ±one percent of full scale.

(c) Measure HC, CO, CO₂, and NO_Xexhaust and background concentrations in the sample bag(s) with approximately the same flow rates and pressures used during calibration.

(a) Schematic drawings. Figure 4 in Appendix B of this subpart is a schematic drawing of the exhaust gas analytical systems used for analyzing CVS grab “bag” samples from spark-ignition engines. Since various configurations can produce accurate results, exact conformance with the drawing is not required. Additional components such as instruments, valves, solenoids, pumps and switches may be used to provide additional information and coordinate the functions of the component systems. Other components such as snubbers, which are not needed to maintain accuracy in some systems, may be excluded if their exclusion is based upon good engineering judgment.

(b) Major component description. The analytical system, Figure 4 in Appendix B of this subpart, consists of a flame ionization detector (FID) or a heated flame ionization detector (HFID) for the measurement of hydrocarbons, non-dispersive infrared analyzers (NDIR) for the measurement of carbon monoxide and carbon dioxide, and a chemiluminescence detector (CLD) (or heated CLD (HCLD)) for the measurement of oxides of nitrogen. The exhaust gas analytical system must conform to the following requirements:

(1) The CLD (or HCLD) requires that the nitrogen dioxide present in the sample be converted to nitric oxide before analysis. Other types of analyzers may be used if shown to yield equivalent results and if approved in advance by the Administrator.

(2) If CO instruments are used which are essentially free of CO₂and water vapor interference, the use of the conditioning column may be deleted. (See §90.317 and §90.320.)

(3) A CO instrument is considered to be essentially free of CO₂and water vapor interference if its response to a mixture of three percent CO₂in N₂, which has been bubbled through water at room temperature, produces an equivalent CO response, as measured on the most sensitive CO range, which is less than one percent of full-scale CO concentration on ranges above 300 ppm full scale or less than three ppm on ranges below 300 ppm full scale. (See §90.317.)

(c) Alternate analytical systems. Analysis systems meeting the specifications and requirements of this subpart for dilute sampling may be used upon approval of the Administrator.

(d) Other analyzers and equipment. Other types of analyzers and equipment may be used if shown to yield equivalent results and if approved in advance by the Administrator.

(1) The flowmeter calibration must be traceable to the National Institute for Standards and Testing (NIST) and serves as the reference value (NIST “true” value) for the CVS calibration. (Note: In no case should an upstream screen or other restriction which can affect the flow be used ahead of the flowmeter unless calibrated throughout the flow range with such a device.)

(2) The CVS calibration procedures are designed for use of a “metering venturi” type flowmeter. Large radius or American Society of Mechanical Engineers (ASME) flow nozzles are considered equivalent if traceable to NIST measurements. Other measurement systems may be used if shown to be equivalent under the test conditions in this section and traceable to NIST measurements.

(3) Measurements of the various flowmeter parameters are recorded and related to flow through the CVS.

(4) Procedures using both PDP-CVS and CFV-CVS are outlined in the following paragraphs. Other procedures yielding equivalent results may be used if approved in advance by the Administrator.

(b) After the calibration curve has been obtained, verification of the entire system may be performed by injecting a known mass of gas into the system and comparing the mass indicated by the system to the true mass injected. An indicated error does not necessarily mean that the calibration is wrong, since other factors can influence the accuracy of the system (for example, analyzer calibration, leaks, or HC hangup). A verification procedure is found in paragraph (e) of this section.

(c) PDP-CVS calibration. (1) The following calibration procedure outlines the equipment, the test configuration, and the various parameters which must be measured to establish the flow rate of the CVS pump.

(i) All the parameters related to the pump are simultaneously measured with the parameters related to a flowmeter which is connected in series with the pump.

(ii) The calculated flow rate, in cm³ /s, (at pump inlet absolute pressure and temperature) can then be plotted versus a correlation function which is the value of a specific combination of pump parameters.

(iii) The linear equation which relates the pump flow and the correlation function is then determined.

(iv) In the event that a CVS has a multiple speed drive, a calibration for each range used must be performed.

(2) This calibration procedure is based on the measurement of the absolute values of the pump and flowmeter parameters that relate the flow rate at each point. Two conditions must be maintained to assure the accuracy and integrity of the calibration curve:

(i) The temperature stability must be maintained during calibration. (Flowmeters are sensitive to inlet temperature oscillations; this can cause the data points to be scattered. Gradual changes in temperature are acceptable as long as they occur over a period of several minutes.)

(ii) All connections and ducting between the flowmeter and the CVS pump must be absolutely void of leakage.

(3) During an exhaust emission test the measurement of these same pump parameters enables the user to calculate the flow rate from the calibration equation.

(4) Connect a system as shown in Figure 5 in Appendix B of this subpart. Although particular types of equipment are shown, other configurations that yield equivalent results may be used if approved in advance by the Administrator. For the system indicated, the following measurements and accuracies are required:

Calibration Data Measurements

Parameter	Symbol	Units	Sensor-readout tolerances
Barometric pressure (corrected)	P_B	kPa	±.340 kPa.
Ambient temperature	T_A	°C	±.28 °C.
Air temperature into metering venturi	ETI	°C	±1.11 °C.
Pressure drop between the inlet and throat of metering venturi	EDP	kPa	±0.012 kPa.
Air flow	Q_S	m³/min.	±0.5 percent of NIST value.
Air temperature at CVS pump inlet	PTI	°C	±1.11 °C.
Pressure depression at CVS pump inlet	PPI	kPa	±0.055 kPa.
Pressure head at CVS pump outlet	PPO	kPa	±0.055 kPa.
Air temperature at CVS pump outlet (optional)	PTO	°C	±1.11 °C.
Pump revolutions during test period	N	Revs	±1 Rev.
Elapsed time for test period	t	s	±0.5 s.

(5) After the system has been connected as shown in Figure 5 in Appendix B of this subpart, set the variable restrictor in the wide open position and run the CVS pump for 20 minutes. Record the calibration data.

(6) Reset the restrictor valve to a more restricted condition in an increment of pump inlet depression that will yield a minimum of six data points for the total calibration. Allow the system to stabilize for three minutes and repeat the data acquisition.

(i) The air flow rate, Q_s, at each test point is calculated in standard cubic feet per minute 20 °C, 101.3 kPa from the flowmeter data using the manufacturer's prescribed method.

(ii) The air flow rate is then converted to pump flow, V_o, in cubic meter per revolution at absolute pump inlet temperature and pressure:

Q_s= Meter air flow rate in standard cubic meters per minute, standard conditions are 20 °C, 101.3 kPa.

(iii) The correlation function at each test point is then calculated from the calibration data:

(iv) A linear least squares fit is performed to generate the calibration equation which has the form:

D_oand M are the intercept and slope constants, respectively, describing the regression line.

(8) A CVS system that has multiple speeds should be calibrated on each speed used. The calibration curves generated for the ranges will be approximately parallel and the intercept values, D_o, will increase as the pump flow range decreases.

(9) If the calibration has been performed carefully, the calculated values from the equation will be within ±0.50 percent of the measured value of V_o. Values of M will vary from one pump to another, but values of D_ofor pumps of the same make, model, and range should agree within ±three percent of each other. Calibrations should be performed at pump start-up and after major maintenance to assure the stability of the pump slip rate. Analysis of mass injection data will also reflect pump slip stability.

(d) CFV-CVS calibration. (1) Calibration of the CFV is based upon the flow equation for a critical venturi. Gas flow is a function of inlet pressure and temperature:

The calibration procedure described in paragraph (d)(3) of this section establishes the value of the calibration coefficient at measured values of pressure, temperature, and air flow.

(2) The manufacturer's recommended procedure must be followed for calibrating electronic portions of the CFV.

Calibration Data Measurements

Parameter	Symbol	Units	Tolerances
Barometric Pressure (corrected)	P _B	kPa	±.34 kPa
Air temperature, into flowmeter	ETI	°C	±.28 °C
Pressure drop between the inlet and throat of metering venturi	EDP	in. H₂O	±.05 in H₂O
Air flow	Q _S	m³/min	±.5 percent of NIST value
CFV inlet depression	PPI	(kPa)	±.055 kPa
Temperature at venturi inlet	T _V	°C	±2.22 °C

(4) Set up equipment as shown in Figure 6 in Appendix B of this subpart and eliminate leaks. (Leaks between the flow measuring devices and the critical flow venturi will seriously affect the accuracy of the calibration.)

(5) Set the variable flow restrictor to the open position, start the blower, and allow the system to stabilize. Record data from all instruments.

(6) Vary the flow restrictor and make at least eight readings across the critical flow range of the venturi.

(7) Data analysis. The data recorded during the calibration are to be used in the following calculations:

(i) Calculate the air flow rate (designated as Q_s) at each test point in standard cubic feet per minute from the flow meter data using the manufacturer's prescribed method.

Q_s= Flow rate in standard cubic meters per minute, at the standard conditions of 20 °C, 101.3 kPa.

(iii) Plot K _vas a function of venturi inlet pressure. For choked flow, K _vwill have a relatively constant value. As pressure decreases (vacuum increases), the venturi becomes unchoked and K _vdecreases. (See Figure 7 in Appendix B to Subpart D.)

(iv) For a minimum of eight points in the critical region, calculate an average K _vand the standard deviation.

(v) If the standard deviation exceeds 0.3 percent of the average K _v, take corrective action.

(e) CVS system verification. The following “gravimetric” technique may be used to verify that the CVS and analytical instruments can accurately measure a mass of gas that has been injected into the system. (Verification can also be accomplished by constant flow metering using critical flow orifice devices.)

(1) Obtain a small cylinder that has been charged with 99.5 percent or greater propane or carbon monoxide gas (CAUTION—carbon monoxide is poisonous).

(3) Operate the CVS in the normal manner and release a quantity of pure propane into the system during the sampling period (approximately five minutes).

(4) The calculations are performed in the normal way except in the case of propane. The density of propane (0.6109 kg/m³ /carbon atom) is used in place of the density of exhaust hydrocarbons.

(5) The gravimetric mass is subtracted from the CVS measured mass and then divided by the gravimetric mass to determine the percent accuracy of the system.

(6) Good engineering practice requires that the cause for any discrepancy greater than ±two percent must be found and corrected.

Calibrate the CVS positive displacement pump or critical flow venturi following initial installation, major maintenance, or as necessary when indicated by the CVS system verification (described in §90.424(e)).

(a) The final reported emission test results must be computed by use of the following formula:

A_WM= Final weighted brake-specific mass emission rate for an emission (HC, CO, CO₂, or NO_X) [g/kW-hr]

W_i= Average mass flow rate of an emission (HC, CO, CO₂, NO_X) from a test engine during mode i [g/hr]

P_i= Gross average power generated during mode i [kW], calculated from the following equation,

K_Hi= NO_Xhumidity correction factor for mode i. This correction factor only affects calculations for tion factor only affects calculations for NO_Xand is equal to one for all other emissions. K_Hiis also equal to 1 for all two-stroke engines.

(b) The mass flow rate, W_iin g/hr, of an emission for mode i is determined from the following equations:

Density = Density of a specific emission (Density_HC, Density_CO, Density_CO2, Density_NOx) [g/m³ ].

C_Di= Concentration of the emission (HC, CO, NO_X) in dilute exhaust extracted from the CVS during mode i [ppm].

C_Bi= Concentration of the emission (HC, CO, NO_X) in the background sample during mode i [ppm].

STP = Standard temperature and pressure. All volumetric calculations made for the equations in this section are to be corrected to a standard temperature of 20 °C and 101.3 kPa.

(1) The value of Density_HCabove is calculated based on the assumption that the fuel used has a carbon to hydrogen ratio of 1:1.85. For other fuels Density_HCcan be calculated from the following formula:

M_HC= The molecular weight of the hydrocarbon molecule divided by the number of carbon atoms in the molecule [g/mole]

(2) The idealized molecular weight of the exhaust hydrocarbons, i.e., the molecular weight of the hydrocarbon molecule divided by the number of carbon atoms in the molecule, M_HC, can be calculated from the following formula:

(3) The value of Density_NOXabove assumes that NO_Xis entirely in the form of NO₂

(d) The dilution factor, DF, is the ratio of the volumetric flow rate of the background air to that of the raw engine exhaust. The following formula is used to determine DF:

(e) The humidity correction factor K_His an adjustment made to measured NO_Xvalues. This corrects for the sensitivity that a spark-ignition engine has to the humidity of its combustion air. The following formula is used to determine K_Hfor NO_Xcalculations:

H = the amount of water in an ideal gas; 40 CFR 1065.645 describes how to determine this value (referred to as x_H2_O).

(h) The fuel mass flow rate, F_i, can be either measured or calculated using the following formula:

(i) The mass of fuel consumed during the mode sampling period, M_FUEL, can be calculated from the following equation:

R₂= The fuel carbon weight fraction, which is the mass of carbon in fuel per mass of fuel [g/g]

The grams of carbon measured during the mode, G_s, can be calculated from the following equation:

(a) The purpose of the evaluation procedure specified in this section is to determine the effect of thermal stress on catalyst conversion efficiency for Phase 1 engines. The thermal stress is imposed on the test catalyst by exposing it to quiescent heated air in an oven. The evaluation of the effect of such stress on catalyst performance is based on the resultant degradation of the efficiency with which the conversions of specific pollutants are promoted. The application of this evaluation procedure involves the several steps that are described in the following paragraphs.

(b) Determination of initial conversion efficiency. (1) A synthetic exhaust gas mixture having the composition specified in §90.329 is heated to a temperature of 450 °C ±5 °C and passed through the new test catalyst or, optionally, a test catalyst that has been exposed to temperatures less than or equal to 500 °C for less than or equal to two hours, under flow conditions that are representative of anticipated in-use conditions.

(2) The concentration of each pollutant of interest, that is, hydrocarbons, carbon monoxide, or oxides of nitrogen, in the effluent of the catalyst is determined by means of the instrumentation that is specified for exhaust gas analysis in subpart D of this part.

(c) Imposition of thermal stress. (1) The catalyst is placed in an oven that has been pre-heated to 1000 °C and the temperature of the air in the oven is maintained at 1000 °C ±10 °C for six hours.

(2) The catalyst is removed from the oven and allowed to cool to room temperature.

(d) Determination of final conversion efficiency. The steps listed in paragraph (b) of this section are repeated.

(e) Determination of conversion efficiency degradation. (1) The final conversion efficiency determined in paragraph (c) of this section is subtracted from the initial conversion efficiency determined in paragraph (b) of this section.

(f) Determination of compliance with degradation limit. The percent degradation determined in paragraph (e) of this section must not be greater than 20 percent.

Table 1—Parameters to be Measured or Calculated and Recorded

Parameter	Units
Airflow rate (dry), if applicable	g/h
Fuel flow rate	g/h
Engine Speed	rpm
Engine Torque Output	N m
Power Output	kW
Air inlet temperature	°C
Air humidity	mg/kg
Coolant temperature (liquid cooled)	°C
Exhaust mixing chamber surface temperature, if applicable	°C
Exhaust sample line temperature, if applicable	°C
Total Accumulated hours of Engine Operation	h
Barometric Pressure	kPa

Table 2—Test Cycles for Class I-A, I-B, and Class I-V Engines

Mode Speed	1	2	3	4	5	6	7	8	9	10	11
	Rated Speed					Intermediate Speed					Idle
Mode Points—A Cycle						1	2	3	4	5	6
Load Percent—A Cycle						100	75	50	25	10	0
Weighting						9%	20%	29%	30%	7%	5%
Mode Points—B Cycle	1	2	3	4	5						6
Load Percent—B Cycle	100	75	50	25	10						0
Weighting	9%	20%	29%	30%	7%						5%
Mode Points—C Cycle	1										2
Load Percent—C Cycle	100										0
Weighting for Phase 1 Engines	90%										10%
Weighting for Phase 2 Engines	85%										15%

Subpart F—Selective Enforcement Auditing

The requirements of subpart F shall be applicable to all nonroad engines and vehicles subject to the provisions of subpart A of part 90.

The definitions in subpart A of this part apply to this subpart. The following definitions shall also apply to this subpart.

Acceptable quality level (AQL) means the maximum percentage of failing engines that can be considered a satisfactory process average for sampling inspections.

Configuration means any subclassification of an engine family which can be described on the basis of gross power, emission control system, governed speed, fuel system, engine calibration, and other parameters as designated by the Administrator.

Inspection criteria means the pass and fail numbers associated with a particular sampling plan.

Test sample means the collection of engines selected from the population of an engine family for emission testing.

(a) The Administrator shall require any testing under this subpart by means of a test order addressed to the manufacturer.

(b) The test order will be signed by the Assistant Administrator for Air and Radiation or his or her designee. The test order will be delivered in person by an EPA enforcement officer or EPA authorized representative to a company representative or sent by registered mail, return receipt requested, to the manufacturer's representative who signed the application for certification submitted by the manufacturer, pursuant to the requirements of the applicable section of subpart B of this part. Upon receipt of a test order, the manufacturer shall comply with all of the provisions of this subpart and instructions in the test order.

(c) Information included in test order. (1) The test order will specify the engine family to be selected for testing, the manufacturer's engine assembly plant or associated storage facility or port facility (for imported engines) from which the engines must be selected, the time and location at which engines must be selected, and the procedure by which engines of the specified family must be selected. The test order may specify the configuration to be audited and/or the number of engines to be selected per day. Engine manufacturers will be required to select a minimum of four engines per day unless an alternate selection procedure is approved pursuant to §90.507(a), or unless total production of the specified configuration is less than four engines per day. If total production of the specified configuration is less than four engines per day, the manufacturer will select the actual number of engines produced per day.

(2) The test order may include alternate families to be selected for testing at the Administrator's discretion in the event that engines of the specified family are not available for testing because those engines are not being manufactured during the specified time, or are not being stored at the specified assembly plant, associated storage facilities or port of entry.

(3) If the specified family is not being manufactured at a rate of at least two engines per day in the case of manufacturers specified in §90.508(g)(1), or one engine per day in the case of manufacturers specified in §90.508(g)(2), over the expected duration of the audit, the Assistant Administrator or his or her designated representative may select engines of the alternate family for testing.

(4) In addition, the test order may include other directions or information essential to the administration of the required testing.

(d) A manufacturer may submit a list of engine families and the corresponding assembly plants, associated storage facilities, or (in the case of imported engines) port facilities from which the manufacturer prefers to have engines selected for testing in response to a test order. In order that a manufacturer's preferred location be considered for inclusion in a test order for a particular engine family, the list must be submitted prior to issuance of the test order. Notwithstanding the fact that a manufacturer has submitted the list, the Administrator may order selection at other than a preferred location.

(e) Upon receipt of a test order, a manufacturer shall proceed in accordance with the provisions of this subpart.

(f)(1) During a given model year, the Administrator shall not issue to a manufacturer more Selective Enforcement Auditing (SEA) test orders than an annual limit determined by the following:

(i) for manufacturers with a projected annual production of less than 100,000 engines bound for the United States market for that model year, the number is two;

(ii) for manufacturers with a projected annual production of 100,000 or more engines bound for the United States market for that model year, by dividing the manufacturer's total number of certified engine families by five and rounding to the nearest whole number, unless the number of engine families is less than eight, in which case the number is two.

(2) If a manufacturer submits to EPA in writing prior to or during the model year a reliable sales projection update or adds engine families or deletes engine families from its production, that information will be used for recalculating the manufacturer's annual limit of SEA test orders.

(3) Any SEA test order for which the family or configuration, as appropriate, fails under §90.510 or for which testing is not completed will not be counted against the annual limit.

(4) When the annual limit has been met, the Administrator may issue additional test orders to test those families or configurations for which evidence exists indicating nonconformity, or for which the Administrator has reason to believe are not being appropriately represented or tested in Production Line Testing conducted under subpart H of this part, if applicable. An SEA test order issued pursuant to this provision will include a statement as to the reason for its issuance.

(a) The Administrator may require by test order under §90.503 that engines of a specified family be selected in a manner consistent with the requirements of §90.507 and submitted to the Administrator at the place designated for the purpose of conducting emission tests. These tests will be conducted in accordance with §90.508 to determine whether engines manufactured by the manufacturer conform with the regulations with respect to which the certificate of conformity was issued.

(b) Designating official data. (1) Whenever the Administrator conducts a test on a test engine or the Administrator and manufacturer each conduct a test on the same test engine, the results of the Administrator's test will comprise the official data for that engine.

(2) Whenever the manufacturer conducts all tests on a test engine, the manufacturer's test data will be accepted as the official data, provided that if the Administrator makes a determination based on testing conducted under paragraph (a) of this section that there is a substantial lack of agreement between the manufacturer's test results and the Administrator's test results, no manufacturer's test data from the manufacturer's test facility will be accepted for purposes of this subpart.

(1) Notify the manufacturer in writing of the Administrator's determination that the test facility is inappropriate for conducting the tests required by this subpart and the reasons therefor; and

(2) Reinstate any manufacturer's data upon a showing by the manufacturer that the data acquired under paragraph (a) of this section was erroneous and the manufacturer's data was correct.

(d) The manufacturer may request in writing that the Administrator reconsider his or her determination in paragraph (b)(2) of this section based on data or information which indicates that changes have been made to the test facility and these changes have resolved the reasons for disqualification.

(a) The manufacturer of any new nonroad engine subject to any of the provisions of this subpart shall establish, maintain, and retain the following adequately organized and indexed records:

(1) General records. A description of all equipment used to test engines, as specified in subpart D of this part, in accordance with §90.508 pursuant to a test order issued under this subpart.

(2) Individual records. These records pertain to each audit conducted pursuant to this subpart and shall include:

(ii) The number of hours of service accumulated on the engine when the test began and ended;

(iii) The names of all supervisory personnel involved in the conduct of the audit;

(iv) A record and description of any repairs performed prior to and/or subsequent to approval by the Administrator, giving the date, associated time, justification, name(s) of the authorizing personnel, and names of all supervisory personnel responsible for the conduct of the repair;

(v) The date the engine was shipped from the assembly plant, associated storage facility or port facility and date the engine was received at the testing facility;

(vi) A complete record of all emission tests performed pursuant to this subpart (except tests performed directly by EPA), including all individual worksheets and/or other documentation relating to each test, or exact copies thereof, to be in accordance with the record requirements specified in §§90.405, 90.406, 90.418, and/or 90.425 as applicable.

(vii) A brief description of any significant audit events commencing with the test engine selection process, but not described under paragraph (a)(2) of this section, including such extraordinary events as engine damage during shipment.

(3) The manufacturer shall record test equipment description, pursuant to paragraph (a)(1) of this section, for each test cell that can be used to perform emission testing under this subpart.

(b) The manufacturer shall retain all records required to be maintained under this subpart for a period of one year after completion of all testing in response to a test order. Records may be retained as hard copy or reduced to microfilm, floppy disc, and so forth, depending upon the manufacturer's record retention procedure, provided that in every case all the information contained in the hard copy is retained.

(c) The manufacturer shall, upon request by the Administrator, submit the following information with regard to engine production:

(1) Projected U.S. sales data for each engine configuration within each engine family for which certification is requested;

(2) Number of engines, by configuration and assembly plant, scheduled for production for the time period designated in the request;

(3) Number of engines, by configuration and by assembly plant, storage facility or port facility, scheduled to be stored at facilities for the time period designated in the request; and

(4) Number of engines, by configuration and assembly plant, produced during the time period designated in the request that are complete for introduction into commerce.

(d) Nothing in this section limits the Administrator's discretion in requiring the manufacturer to retain additional records or submit information not specifically required by this section.

(e) The manufacturer shall address all reports, submissions, notifications, and requests for approvals made under this subpart to: Director, Manufacturers Operations Division, U.S. Environmental Protection Agency, 6405–J, 401 M St., SW., Washington, DC 20460.

(a) To allow the Administrator to determine whether a manufacturer is complying with the provisions of this subpart, a test order is issued which authorizes EPA enforcement officers or their authorized representatives upon presentation of credentials to enter during operating hours any of the following places:

(1) Any facility where any engine to be introduced into commerce, including ports of entry, or any emission-related component is manufactured, assembled, or stored;

(2) Any facility where any tests conducted pursuant to a test order or any procedures or activities connected with these tests are or were performed;

(3) Any facility where any engine which is being tested, was tested, or will be tested is present; and

(4) Any facility where any record or other document relating to any of the above is located.

(b) Upon admission to any facility referred to in paragraph (a) of this section, EPA enforcement officers or EPA authorized representatives are authorized to perform the following inspection-related activities:

(1) To inspect and monitor any aspects of engine assembly, storage, testing and other procedures, and the facilities in which these procedures are conducted;

(2) To inspect and monitor any aspect of engine test procedures or activities, including, but not limited to, engine selection, preparation, service accumulation, emission test cycles, and maintenance and verification of test equipment calibration;

(3) To inspect and make copies of any records or documents related to the assembly, storage, selection and testing of an engine in compliance with a test order; and

(4) To inspect and photograph any part or aspect of any engine and any component used in the assembly thereof that is reasonably related to the purpose of the entry.

(c) EPA enforcement officers or EPA authorized representatives are authorized to obtain reasonable assistance without cost from those in charge of a facility to help the officers perform any function listed in this subpart, and they are authorized to request the recipient of a test order to make arrangements with those in charge of a facility operated for the manufacturer's benefit to furnish reasonable assistance without cost to EPA, whether or not the recipient controls the facility.

(1) Reasonable assistance includes, but is not limited to, clerical, copying, interpretation and translation services, the making available on an EPA enforcement officer's or EPA authorized representative's request of personnel of the facility being inspected during their working hours to inform the EPA enforcement officer or EPA authorized representative of how the facility operates and to answer the officer's questions, and the performance on request of emission tests on any engine which is being, has been, or will be used for SEA testing.

(2) A manufacturer may be compelled to cause the personal appearance of any employee at such a facility before an EPA enforcement officer or EPA authorized representative by written request for his or her appearance, signed by the Assistant Administrator for Air and Radiation, served on the manufacturer. Any such employee who has been instructed by the manufacturer to appear will be entitled to be accompanied, represented, and advised by counsel.

(d) EPA enforcement officers or EPA authorized representatives are authorized to seek a warrant or court order authorizing the EPA enforcement officers or EPA authorized representatives to conduct activities related to entry and access as authorized in this section, as appropriate, to execute the functions specified in this section. EPA enforcement officers or authorized representatives may proceed ex parte to obtain a warrant whether or not the EPA enforcement officers or EPA authorized representatives first attempted to seek permission of the recipient of the test order or the party in charge of the facilities in question to conduct activities related to entry and access as authorized in this section.

(e) A recipient of a test order shall permit an EPA enforcement officer(s) or EPA authorized representative(s) who presents a warrant or court order to conduct activities related to entry and access as authorized in this section and as described in the warrant or court order. The recipient shall also cause those in charge of its facility or a facility operated for its benefit to permit entry and access as authorized in this section pursuant to a warrant or court order whether or not the recipient controls the facility. In the absence of a warrant or court order, an EPA enforcement officer(s) or EPA authorized representative(s) may conduct activities related to entry and access as authorized in this section only upon the consent of the recipient of the test order or the party in charge of the facilities in question.

(f) It is not a violation of this part or of the Clean Air Act for any person to refuse to permit an EPA enforcement officer(s) or an EPA authorized representative(s) to conduct activities related to entry and access as authorized in this section if the officer or representative appears without a warrant or court order.

(g) A manufacturer is responsible for locating its foreign testing and manufacturing facilities in jurisdictions in which local foreign law does not prohibit an EPA enforcement officer(s) or an EPA authorized representative(s) from conducting the entry and access activities specified in this section. EPA will not attempt to make any inspections which it has been informed that local foreign law prohibits.

(a) Engines comprising a test sample will be selected at the location and in the manner specified in the test order. If a manufacturer determines that the test engines cannot be selected in the manner specified in the test order, an alternative selection procedure may be employed, provided the manufacturer requests approval of the alternative procedure prior to the start of test sample selection, and the Administrator approves the procedure.

(b) The manufacturer shall assemble the test engines of the family selected for testing using its normal mass production process for engines to be distributed into commerce. If, between the time the manufacturer is notified of a test order and the time the manufacturer finishes selecting test engines, the manufacturer implements any change(s) in its production processes, including quality control, which may reasonably be expected to affect the emissions of the engines selected, then the manufacturer shall, during the audit, inform the Administrator of such changes. If the test engines are selected at a location where they do not have their operational and emission control systems installed, the test order will specify the manner and location for selection of components to complete assembly of the engines. The manufacturer shall assemble these components onto the test engines using normal assembly and quality control procedures as documented by the manufacturer.

(c) No quality control, testing, or assembly procedures will be used on the test engine or any portion thereof, including parts and subassemblies, that have not been or will not be used during the production and assembly of all other engines of that family, unless the Administrator approves the modification in assembly procedures pursuant to paragraph (b) of this section.

(d) The test order may specify that an EPA enforcement officer(s) or authorized representative(s), rather than the manufacturer, select the test engines according to the method specified in the test order.

(e) The order in which test engines are selected determines the order in which test results are to be used in applying the sampling plan in accordance with §90.510.

(f) The manufacturer shall keep on hand all untested engines, if any, comprising the test sample until a pass or fail decision is reached in accordance with §90.510(e). The manufacturer may ship any tested engine which has not failed in accordance with §90.510(b). However, once the manufacturer ships any test engine, it relinquishes the prerogative to conduct retests as provided in §90.508(i).

(a) For nonroad engines subject to the provisions of this subpart, the prescribed test procedures are the appropriate small SI engine test procedures as described in subpart E of this part.

(b)(1) The manufacturer shall not adjust, repair, prepare, or modify the engines selected for testing and shall not perform any emission tests on engines selected for testing pursuant to the test order unless this adjustment, repair, preparation, modification, and/or tests are documented in the manufacturer's engine assembly and inspection procedures and are actually performed or unless these adjustments and/or tests are required or permitted under this subpart or are approved in advance by the Administrator.

(2) The Administrator may adjust or cause to be adjusted any engine parameter which the Administrator has determined to be subject to adjustment for certification and Selective Enforcement Audit testing in accordance with §90.112(c), to any setting within the physically adjustable range of that parameter, as determined by the Administrator in accordance with §90.112(a), prior to the performance of any tests. However, if the idle speed parameter is one which the Administrator has determined to be subject to adjustment, the Administrator shall not adjust it to any setting which causes a lower engine idle speed than would have been possible within the physically adjustable range of the idle speed parameter if the manufacturer had accumulated 12 hours of service on the engine under paragraph (c) of this section, all other parameters being identically adjusted for the purpose of the comparison. The manufacturer may be requested to supply information needed to establish an alternate minimum idle speed. The Administrator, in making or specifying these adjustments, may consider the effect of the deviation from the manufacturer's recommended setting on emission performance characteristics as well as the likelihood that similar settings will occur on in-use engines. In determining likelihood, the Administrator may consider factors such as, but not limited to, the effect of the adjustment on engine performance characteristics and surveillance information from similar in-use engines.

(c) Service Accumulation. Prior to performing exhaust emission testing on an SEA test engine, the manufacturer may accumulate on each engine a number of hours of service equal to the greater of 12 hours or the number of hours the manufacturer accumulated during certification on the emission data engine corresponding to the family specified in the test order.

(1) Service accumulation must be performed in a manner using good engineering judgment to obtain emission results representative of normal production engines. This service accumulation must be consistent with the new engine break-in instructions contained in the applicable owner's manual.

(2) The manufacturer shall accumulate service at a minimum rate of 12 hours per engine during each 24-hour period, unless otherwise approved by the Administrator.

(i) The first 24 hour period for service shall begin as soon as authorized checks, inspections, and preparations are completed on each engine.

(ii) The minimum service or mileage accumulation rate does not apply on weekends or holidays.

(iii) If the manufacturer's service or target is less than the minimum rate specified (12 hours per day), then the minimum daily accumulation rate shall be equal to the manufacturer's service target.

(3) Service accumulation shall be completed on a sufficient number of test engines during consecutive 24-hour periods to assure that the number of engines tested per day fulfills the requirements of paragraphs (g)(1) and (g)(2) of this section.

(d) The manufacturer shall not perform any maintenance on test engines after selection for testing, nor shall the Administrator allow deletion of any engine from the test sequence, unless requested by the manufacturer and approved by the Administrator before any engine maintenance or deletion.

(e) The manufacturer shall expeditiously ship test engines from the point of selection to the test facility. If the test facility is not located at or in close proximity to the point of selection, the manufacturer shall assure that test engines arrive at the test facility within 24 hours of selection, except that the Administrator may approve more time for shipment based upon a request by the manufacturer accompanied by a satisfactory justification.

(f) If an engine cannot complete the service accumulation or an emission test because of a malfunction, the manufacturer may request that the Administrator authorize either the repair of that engine or its deletion from the test sequence.

(g) Whenever a manufacturer conducts testing pursuant to a test order issued under this subpart, the manufacturer shall notify the Administrator within one working day of receipt of the test order as to which test facility will be used to comply with the test order. If no test cells are available at a desired facility, the manufacturer must provide alternate testing capability satisfactory to the Administrator.

(1) A manufacturer with projected nonroad engine sales for the United States market for the applicable year of 7,500 or greater shall complete emission testing at a minimum rate of two engines per 24-hour period, including each voided test.

(2) A manufacturer with projected nonroad engine sales for the United States market for the applicable year of less than 7,500 shall complete emission testing at a minimum rate of one engine per 24-hour period, including each voided test.

(3) The Administrator may approve a lower daily rate of emission testing based upon a request by a manufacturer accompanied by a satisfactory justification.

(h) The manufacturer shall perform test engine selection, shipping, preparation, service accumulation, and testing in such a manner as to assure that the audit is performed in an expeditious manner.

(i) Retesting. (1) The manufacturer may retest any engines tested during a Selective Enforcement Audit once a fail decision for the audit has been reached in accordance with §90.510(e).

(2) The Administrator may approve retesting at other times based upon a request by the manufacturer accompanied by a satisfactory justification.

(3) The manufacturer may retest each engine a total of three times. The manufacturer shall test each engine or vehicle the same number of times. The manufacturer may accumulate additional service before conducting a retest, subject to the provisions of paragraph (c) of this section.

(j) A manufacturer may test engines with the test procedure specified in subpart E of this part to demonstrate compliance with the exhaust emission standards; however, if alternate procedures were used in certification pursuant to §90.120, then those alternate procedures shall be used.

(a) Initial test results are calculated following the applicable test procedure specified in paragraph (a) of §90.508. The manufacturer shall round these results, in accordance with ASTM E29–93a, to the number of decimal places contained in the applicable emission standard expressed to one additional significant figure. ASTM E29–93a has been incorporated by reference. See §90.7.

(b)(1) Final test results are calculated by summing the initial test results derived in paragraph (a) of this section for each test engine, dividing by the number of tests conducted on the engine, and rounding to the same number of decimal places contained in the applicable standard. For Phase 2 engines only, this result shall be expressed to one additional significant figure.

(2) Final deteriorated test results (for Phase 2 test engines only) are calculated by applying the appropriate deterioration factors, from the certification process for the engine family, to the final test results, and rounding to the same number of decimal places contained in the applicable standard.

(c) Within five working days after completion of testing of all engines pursuant to a test order, the manufacturer shall submit to the Administrator a report which includes the following information:

(1) The location and description of the manufacturer's exhaust emission test facilities which were utilized to conduct testing reported pursuant to this section;

(2) The applicable standards or compliance levels against which the engines were tested;

(3) A description of the engine and its associated emission-related component selection method used;

(ii) Location where service accumulation was conducted and description of accumulation procedure and schedule;

(iii) Test number, date, test procedure used, initial test results before and after rounding and final test results for all exhaust emission tests, whether valid or invalid, and the reason for invalidation, if applicable;

(iv) A complete description of any modification, repair, preparation, maintenance, and/or testing which was performed on the test engine and has not been reported pursuant to any other paragraph of this subpart and will not be performed on all other production engines;

(v) Where an engine was deleted from the test sequence by authorization of the Administrator, the reason for the deletion;

(vi) Any other information the Administrator may request relevant to the determination as to whether the new engines being manufactured by the manufacturer do in fact conform with the regulations with respect to which the certificate of conformity was issued; and

This report is submitted pursuant to sections 213 and 208 of the Clean Air Act. This Selective Enforcement Audit was conducted in complete conformance with all applicable regulations under 40 CFR part 90 et seq. and the conditions of the test order. No emission-related changes to production processes or quality control procedures for the engine family tested have been made between receipt of the test order and conclusion of the audit. All data and information reported herein is, to the best of (Company Name) knowledge, true and accurate. I am aware of the penalties associated with violations of the Clean Air Act and the regulations thereunder. (Authorized Company Representative.)

(b) For Phase I engines, a failed engine is an engine whose final test results pursuant to §90.509(b), for one or more of the applicable pollutants exceed the emission standard. For Phase 2 engines, a failed engine is an engine whose final deteriorated test results pursuant to §90.509(b), for one or more of the applicable pollutants exceed the emission standard (FEL, if applicable).

(c) The manufacturer shall test engines comprising the test sample until a pass decision is reached for all pollutants or a fail decision is reached for one pollutant. A pass decision is reached when the cumulative number of failed engines, as defined in paragraph (b) of this section, for each pollutant is less than or equal to the pass decision number, as defined in paragraph (d) of this section, appropriate to the cumulative number of engines tested. A fail decision is reached when the cumulative number of failed engines for one or more pollutants is greater than or equal to the fail decision number, as defined in paragraph (d) of this section, appropriate to the cumulative number of engines tested.

(d) The pass and fail decision numbers associated with the cumulative number of engines tested are determined by using the tables in Appendix A to this subpart, “Sampling Plans for Selective Enforcement Auditing of Small Nonroad Engines,” appropriate to the projected sales as made by the manufacturer in its report to EPA under §90.505(c)(1). In the tables in Appendix A to this subpart, sampling plan “stage” refers to the cumulative number of engines tested. Once a pass or fail decision has been made for a particular pollutant, the number of engines with final test results exceeding the emission standard for that pollutant shall not be considered any further for the purposes of the audit.

(e) Passing or failing of an SEA occurs when the decision is made on the last engine test required to make a decision under paragraph (c) of this section.

(f) The Administrator may terminate testing earlier than required in paragraph (c) of this section.

(a) The certificate of conformity is suspended with respect to any engine failing pursuant to §90.510(b) effective from the time that testing of that engine is completed.

(b) The Administrator may suspend the certificate of conformity for a family which does not pass an SEA, pursuant to paragraph §90.510(c), based on the first test or all tests conducted on each engine. This suspension will not occur before ten days after failure of the audit.

(c) If the results of testing pursuant to these regulations indicate that engines of a particular family produced at one plant of a manufacturer do not conform to the regulations with respect to which the certificate of conformity was issued, the Administrator may suspend the certificate of conformity with respect to that family for engines manufactured by the manufacturer at all other plants.

(d) Notwithstanding the fact that engines described in the application may be covered by a certificate of conformity, the Administrator may suspend such certificate in whole or in part if the Administrator finds any one of the following infractions to be substantial:

(1) The manufacturer refuses to comply with the provisions of a test order issued by the Administrator under §90.503.

(2) The manufacturer refuses to comply with any of the requirements of this subpart.

(3) The manufacturer submits false or incomplete information in any report or information provided to the Administrator under this subpart.

(4) The manufacturer renders inaccurate any test data submitted under this subpart.

(5) An EPA enforcement officer or EPA authorized representative is denied the opportunity to conduct activities related to entry and access as authorized in this subpart and a warrant or court order is presented to the manufacturer or the party in charge of a facility in question.

(6) An EPA enforcement officer or EPA authorized representative is unable to conduct activities related to entry and access as authorized in §90.506 because a manufacturer has located a facility in a foreign jurisdiction where local law prohibits those activities.

(e) The Administrator shall notify the manufacturer in writing of any suspension or revocation of a certificate of conformity in whole or in part, except that the certificate is immediately suspended with respect to any failed engines as provided for in paragraph (a) of this section.

(f) The Administrator may revoke a certificate of conformity for a family when the certificate has been suspended pursuant to paragraph (b) or (c) of this section if the proposed remedy for the nonconformity, as reported by the manufacturer to the Administrator, is one requiring a design change or changes to the engine and/or emission control system as described in the application for certification of the affected family.

(g) Once a certificate has been suspended for a failed engine, as provided for in paragraph (a) of this section, the manufacturer shall take the following actions:

(ii) Demonstrate that the engine conforms to applicable standards by retesting the engine in accordance with these regulations.

(2) Submit a written report to the Administrator, after successful completion of testing on the failed engine, which contains a description of the remedy and test results for each engine in addition to other information that may be required by this regulation.

(h) Once a certificate for a failed family has been suspended pursuant to paragraph (b) or (c) of this section, the manufacturer shall take the following actions before the Administrator will consider reinstating the certificate:

(1) Submit a written report to the Administrator which identifies the reason for the noncompliance of the engines, describes the proposed remedy, including a description of any proposed quality control and/or quality assurance measures to be taken by the manufacturer to prevent future occurrences of the problem, and states the date on which the remedies will be implemented.

(2) Demonstrate that the engine family for which the certificate of conformity has been suspended does in fact comply with these regulations by testing engines selected from normal production runs of that engine family, at the plant(s), port facility(ies) or associated storage facility(ies) specified by the Administrator, in accordance with the conditions specified in the initial test order. If the manufacturer elects to continue testing individual engines after suspension of a certificate, the certificate is reinstated for an engine actually determined to be in conformance with the applicable standards through testing in accordance with the applicable test procedures, provided that the Administrator has not revoked the certificate pursuant to paragraph (f) of this section.

(i) Once the certificate has been revoked for a family and the manufacturer desires to continue introduction into commerce of a modified version of that family, the following actions shall be taken before the Administrator may consider issuing a certificate for that modified family:

(1) If the Administrator determines that the proposed change(s) in engine design may have an effect on emission performance deterioration, the Administrator shall notify the manufacturer, within five working days after receipt of the report in paragraph (f) of this section, whether subsequent testing under this subpart will be sufficient to evaluate the proposed change or changes or whether additional testing will be required; and

(2) After implementing the change or changes intended to remedy the nonconformity, the manufacturer shall demonstrate that the modified engine family does in fact conform with these regulations by testing engines selected from normal production runs of that modified engine family in accordance with the conditions specified in the initial test order. If the subsequent audit results in passing of the audit, the Administrator shall reissue the certificate or issue a new certificate, as the case may be, to include that family, provided that the manufacturer has satisfied the testing requirements of paragraph (i)(1) of this section. If the subsequent audit is failed, the revocation remains in effect. Any design change approvals under this subpart are limited to the family affected by the test order.

(j) At any time subsequent to an initial suspension of a certificate of conformity for a test engine pursuant to paragraph (a) of this section, but not later than 15 days or such other period as may be allowed by the Administrator after notification of the Administrator's decision to suspend or revoke a certificate of conformity in whole or in part pursuant to paragraphs (b), (c), or (f) of this section, a manufacturer may request a hearing as to whether the tests have been properly conducted or any sampling methods have been properly applied.

(k) Any suspension of a certificate of conformity under paragraph (d) of this section shall:

(1) Be made only after the manufacturer concerned has been offered an opportunity for a hearing conducted in accordance with §§90.512, 90.513, and 90.514 and

(l) After the Administrator suspends or revokes a certificate of conformity pursuant to this section and prior to the commencement of a hearing under §90.512, if the manufacturer demonstrates to the Administrator's satisfaction that the decision to suspend, revoke, or void the certificate was based on erroneous information, the Administrator shall reinstate the certificate.

(m) To permit a manufacturer to avoid storing non-test engines when conducting an audit of a family subsequent to a failure of an SEA and while reauditing the failed family it may request that the Administrator conditionally reinstate the certificate for that family. The Administrator may reinstate the certificate subject to the condition that the manufacturer commits to recall all engines of that family produced from the time the certificate is conditionally reinstated if the family fails the subsequent audit at the level of the standard and to remedy any nonconformity at no expense to the owner.

(a) If the manufacturer disagrees with the Administrator's decision to suspend, revoke or void a certificate or disputes the basis for an automatic suspension pursuant to §90.511(a), the manufacturer may request a public hearing.

(b) The manufacturer's request shall be filed with the Administrator not later than 15 days after the Administrator's notification of his or her decision to suspend, revoke or void, unless otherwise specified by the Administrator. The manufacturer shall simultaneously serve two copies of this request upon the Director of the Engine Programs and Compliance Division and file two copies with the Hearing Clerk of the Agency. Failure of the manufacturer to request a hearing within the time provided constitutes a waiver of the right to a hearing. Subsequent to the expiration of the period for requesting a hearing as of right, the Administrator may, in his or her discretion and for good cause shown, grant the manufacturer a hearing to contest the suspension, revocation or voiding.

(1) A statement as to which engine configuration(s) within a family is to be the subject of the hearing;

(2) A concise statement of the issues to be raised by the manufacturer at the hearing, except that in the case of the hearing requested under §90.511(j), the hearing is restricted to the following issues:

(i) Whether tests have been properly conducted (specifically, whether the tests were conducted in accordance with applicable regulations under this part and whether test equipment was properly calibrated and functioning);

(ii) Whether sampling plans have been properly applied (specifically, whether sampling procedures specified in Appendix A of this subpart were followed and whether there exists a basis for distinguishing engines produced at plants other than the one from which engines were selected for testing which would invalidate the Administrator's decision under §90.511(c));

(3) A statement specifying reasons why the manufacturer believes it will prevail on the merits of each of the issues raised; and

(4) A summary of the evidence which supports the manufacturer's position on each of the issues raised.

(d) A copy of all requests for public hearings will be kept on file in the Office of the Hearing Clerk and will be made available to the public during Agency business hours.

(a) The Presiding Officer shall be an Administrative Law Judge appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930 as amended).

(b) The Judicial Officer shall be an officer or employee of the Agency appointed as a Judicial Officer by the Administrator, pursuant to this section, who shall meet the qualifications and perform functions as follows:

(1) Qualifications. A Judicial Officer may be a permanent or temporary employee of the Agency who performs other duties for the Agency. The Judicial Officer shall not be employed by the Office of Enforcement or have any connection with the preparation or presentation of evidence for a hearing held pursuant to this subpart. The Judicial Officer shall be a graduate of an accredited law school and a member in good standing of a recognized Bar Association of any state or the District of Columbia.

(2) Functions. The Administrator may consult with the Judicial Officer or delegate all or part of the Administrator's authority to act in a given case under this section to a Judicial Officer, provided that this delegation does not preclude the Judicial Officer from referring any motion or case to the Administrator when the Judicial Officer determines such referral to be appropriate.

(c) For the purposes of this section, one or more Judicial Officers may be designated. As work requires, a Judicial Officer may be designated to act for the purposes of a particular case.

(d) Summary decision. (1) In the case of a hearing requested under §90.511(j), when it clearly appears from the data and other information contained in the request for a hearing that no genuine and substantial question of fact exists with respect to the issues specified in §90.512(c)(2), the Administrator shall enter an order denying the request for a hearing and reaffirming the original decision to suspend or revoke a certificate of conformity, if this decision has been made pursuant to §90.511(e) at any time prior to the decision to deny the request for a hearing.

(2) In the case of a hearing requested under §90.512 to challenge a proposed suspension of a certificate of conformity for the reasons specified in §90.511(d), when it clearly appears from the data and other information contained in the request for the hearing that no genuine and substantial question of fact exists with respect to the issue of whether the refusal to comply with the provisions of a test order or any other requirement of §90.503 was caused by conditions and circumstances outside the control of the manufacturer, the Administrator shall enter an order denying the request for a hearing and suspending the certificate of conformity.

(3) Any order issued under paragraph (d)(1) or (d)(2) of this section has the force and effect of a final decision of the Administrator, as issued pursuant to §90.515.

(4) If the Administrator determines that a genuine and substantial question of fact does exist with respect to any of the issues referred to in paragraphs (d)(1) and (d)(2) of this section, the Administrator shall grant the request for a hearing and publish a notice of public hearing in theFederal Registeror by such other means as the Administrator finds appropriate to provide notice to the public.

(e) Filing and service. (1) An original and two copies of all documents or papers required or permitted to be filed pursuant to this section and §90.512(c) must be filed with the Hearing Clerk of the Agency. Filing is considered timely if mailed, as determined by the postmark, to the Hearing Clerk within the time allowed by this section and §90.512(b). If filing is to be accomplished by mailing, the documents must be sent to the address set forth in the notice of public hearing referred to in paragraph (d)(4) of this section.

(2) To the maximum extent possible, testimony will be presented in written form. Copies of written testimony will be served upon all parties as soon as practicable prior to the start of the hearing. A certificate of service will be provided on or accompany each document or paper filed with the Hearing Clerk. Documents to be served upon the Director of the Manufacturers Operations Division must be sent by registered mail to: Director, Manufacturers Operations Division, U.S. Environmental Protection Agency, 6405–J, 401 M St., SW., Washington, DC 20460. Service by registered mail is complete upon mailing.

(f) Computation of time. (1) In computing any period of time prescribed or allowed by this section, except as otherwise provided, the day of the act or event from which the designated period of time begins to run is not included. Saturdays, Sundays, and federal legal holidays are included in computing the period allowed for the filing of any document or paper, except that when the period expires on a Saturday, Sunday, or federal legal holiday, the period is extended to include the next following business day.

(2) A prescribed period of time within which a party is required or permitted to do an act is computed from the time of service, except that when service is accomplished by mail, three days will be added to the prescribed period.

(g) Consolidation. The Administrator or the Presiding Officer in his or her discretion may consolidate two or more proceedings to be held under this section for the purpose of resolving one or more issues whenever it appears that consolidation will expedite or simplify consideration of these issues. Consolidation does not affect the right of any party to raise issues that could have been raised if consolidation had not occurred.

(h) Hearing date. To the extent possible, hearings under §90.512 will be scheduled to commence within 14 days of receipt of the application in §90.512.

The procedures provided in §86.1014–84 (i) to (s) apply for hearings requested pursuant to §90.512, suspension, revocation, or voiding of a certificate of conformity.

The procedures provided in §86.1014–84 (t) to (aa) apply for appeals filed with respect to hearings held pursuant to §90.514.

The provisions for treatment of confidential information described in §90.4 apply to this subpart.

Table 2—Sample Plan for Code Letter “A”

[Sample inspection criteria]

Stage	Pass No.	Fail No.	Stage	Pass No.	Fail No.1
1	(¹)	(²)	16	6	11
2	(¹)	(²)	17	7	12
3	(¹)	(²)	18	7	12
4	0	(²)	19	8	13
5	0	(²)	20	8	13
6	1	6	21	9	14
7	1	7	22	10	14
8	2	7	23	10	15
9	2	8	24	11	15
10	3	8	25	11	16
11	3	8	26	12	16
12	4	9	27	12	17
13	5	10	28	13	17
14	5	10	29	14	17
15	6	11	30	16	17

¹Test sample passing not permitted at this stage.

²Test sample failure not permitted at this stage.

Table 3—Sampling Plan for Code Letter “B”

[Sample Inspection Criteria]

Stage	Pass No.	Fail No.
1	(¹)	(²)
2	(¹)	(²)
3	(¹)	(²)
4	(¹)	(²)
5	0	(²)
6	1	6
7	1	7
8	2	7
9	2	8
10	3	8
11	3	9
12	4	9
13	4	10
14	5	10
15	5	11
16	6	12
17	6	12
18	7	13
19	8	13
10	8	14
21	9	14
22	9	15
23	10	15
24	10	16
25	11	16
26	11	17
27	12	17
28	12	18
29	13	18
30	13	19
31	14	19
32	14	20
33	15	20
34	16	21
35	16	21
36	17	22
37	17	22
38	18	22
39	18	22
40	21	22

¹Test sample passing not permitted at this stage.

²Test sample failure not permitted at this stage.

Table 4—Sampling Plan for Code Letter “C”

[Sample Inspection Criteria]

Stage	Pass No.	Fail No.
1	(¹)	(²)
2	(¹)	(²)
3	(¹)	(²)
4	(¹)	(²)
5	0	(²)
6	0	6
7	1	7
8	2	7
9	2	8
10	3	9
11	3	9
12	4	10
13	4	10
14	5	11
15	5	11
16	6	12
17	6	12
18	7	13
19	7	13
20	8	14
21	8	14
22	9	15
23	10	15
24	10	16
25	11	16
26	11	17
27	12	17
28	12	18
29	13	18
30	13	19
31	14	19
32	14	20
33	15	20
34	15	21
35	16	21
36	16	22
37	17	22
38	18	23
39	18	23
40	19	24
41	19	24
42	20	25
43	20	25
44	21	26
45	21	27
46	22	27
47	22	27
48	23	27
49	23	27
50	26	27

¹Test sample passing not permitted at this stage.

²Test sample failure not permitted at this stage.

Table 5—Sampling Plan for Code Letter “D”

[Sample Inspection Criteria]

Stage	Pass No.	Fail No.
1	(¹)	(²)
2	(¹)	(²)
3	(¹)	(²)
4	(¹)	(²)
5	0	(²)
6	0	6
7	1	7
8	2	8
9	2	8
10	3	9
11	3	9
12	4	10
13	4	10
14	5	11
15	5	11
16	6	12
17	6	12
18	7	13
19	7	13
20	8	14
21	8	14
22	9	15
23	9	15
24	10	16
25	11	16
26	11	17
27	12	17
28	12	18
29	13	19
30	13	19
31	14	20
32	14	20
33	15	21
34	15	21
35	16	22
36	16	22
37	17	23
38	17	23
39	18	24
40	18	24
41	19	25
42	19	26
43	20	26
44	21	27
45	21	27
46	22	28
47	22	28
48	23	29
49	23	29
50	24	30
51	24	30
52	25	31
53	25	31
54	26	32
55	26	32
56	27	33
57	27	33
58	28	33
59	28	33
60	32	33

¹Test sample passing not permitted at this stage.

²Test sample failure not permitted at this stage.

(a) Except where otherwise indicated, this subpart is applicable to engines and vehicles which are offered for importation or imported into the United States and for which the Administrator has promulgated regulations under subpart B of this part prescribing emission standards, but which are not covered by certificates of conformity issued under section 213 and section 206(a) of the Clean Air Act (that is, which are nonconforming engines as defined below) and under subpart B of this part at the time of importation or conditional importation, as applicable. Compliance with regulations under this subpart shall not relieve any person or entity from compliance with other applicable provisions of the Clean Air Act.

(b) Regulations prescribing further procedures for the importation of small SI engines into the Customs territory of the United States, as defined in 19 U.S.C. 1202, are set forth in U.S. Customs Service regulations.

The definitions in subpart A of this part apply to this subpart. The following definitions also apply to this subpart.

Certificate of conformity. The document issued by the Administrator under section 213 and section 206(a) of the Act.

Nonconforming engine. An engine which is not covered by a certificate of conformity prior to final or conditional admission (or for which such coverage has not been adequately demonstrated to EPA).

Original engine manufacturer (OEM). The entity which originally manufactured the engine.

Original production (OP) year. The calendar year in which the engine was originally produced by the OEM.

Original production (OP) years old. The age of an engine as determined by subtracting the original production year of the engine from the calendar year of importation.

Production changes. Those changes in the engine configuration, equipment or calibration which are made by an OEM in the course of engine production and required to be reported under §90.123.

United States. United States includes the Customs territory of the United States as defined in 19 U.S.C. 1202, and the Virgin Islands, Guam, American Samoa and the Commonwealth of the Northern Mariana Islands.

(a) A nonconforming engine offered for importation into the United States may only be imported for purposes other than resale under §90.611, or under the provisions of §90.612, provided that an exemption or exclusion is granted by the Administrator.

(c) An engine offered for importation may be admitted into the United States. In order to obtain admission, the importer must submit to the Administrator a written request for approval containing the following:

(1) Identification of the importer and the importer's address, telephone number, and taxpayer identification number;

(2) Identification of the engine owner, the owner's address, telephone number, and taxpayer identification number;

(3) Identification of the engine including make, model, identification number, and original production year;

(4) Information indicating under what provision of these regulations the engine is to be imported;

(5) Identification of the place where the subject engine is to be stored until EPA approval of the importer's application to the Administrator for final admission;

(6) Authorization for EPA enforcement officers to conduct inspections or testing otherwise permitted by the Act or regulations thereunder; and

(a) Any individual may import on a one-time basis three or fewer nonconforming engines for purposes other than resale. Such importation by individuals is permitted without modification to the engines and without prior written approval of EPA. Importations under this provision shall be made by completing such applications as required by the Administrator. Such applications shall contain:

(1) Identification of the importer of the engine and the importer's address, telephone number, and taxpayer identification number;

(2) Identification of the engine owner, the owner's address, telephone number, and taxpayer identification number;

(4) A statement that the individual has not previously imported any engines under §90.611;

(5) A statement that the individual is not importing the engines for the purpose of resale;

(6) For each engine imported, identification of the engine including make, model, identification number, and original production year;

(7) Information indicating under what provision of these regulations the engine is to be imported;

(8) Authorization for EPA enforcement officers to conduct inspections permitted by the Act or regulations thereunder;

(b) EPA will not require a U.S. Customs Service bond for a nonconforming engine which is imported under §90.611.

(a) Individuals shall be eligible for importing engines into the United States under the provisions of this section, unless otherwise specified.

(b) Notwithstanding other requirements of this subpart, an engine entitled to one of the temporary exemptions of this paragraph may be conditionally admitted into the United States if prior written approval for the conditional admission is obtained from the Administrator. Conditional admission is to be under U.S. Customs Service bond. The Administrator may request that the U.S. Customs Service require a specific bond amount to ensure compliance with the requirements of the Act and this subpart. A written request for approval from the Administrator is to contain the identification required in §90.604(c) and information that demonstrates that the importer is entitled to the exemption. Noncompliance with provisions of this section may result in the forfeiture of the total amount of the bond or exportation of the engine. The following temporary exemptions are permitted by this paragraph:

(1) Exemption for repairs or alterations. A person may conditionally import under bond a nonconforming engine solely for purpose of repairs or alterations. The engine may not be operated in the United States other than for the sole purpose of repair or alteration or shipment to the point of repair or alteration and to the port of export. It may not be sold or leased in the United States and is to be exported upon completion of the repairs or alterations.

(2) Testing exemption. A test engine may be conditionally imported by a person subject to the requirements of §90.905. A test engine may be operated in the United States provided that the operation is an integral part of the test. This exemption is limited to a period not exceeding one year from the date of importation unless a request is made by the appropriate importer concerning the engine in accordance with §90.905(f) for a subsequent one-year period.

(3) Display exemptions. (i) An engine intended solely for display may be conditionally imported subject to the requirements of §90.907.

(ii) A display engine may be imported by any person for purposes related to a business or the public interest. Such purposes do not include collections normally inaccessible or unavailable to the public on a daily basis, display of an engine at a dealership, private use, or other purpose that the Administrator determines is not appropriate for display exemptions. A display engine may not be sold in the United States and may not be operated in the United States except for the operation incident and necessary to the display purpose.

(iii) A temporary display exemption will be granted for 12 months (one year) or for the duration of the display purpose, whichever is shorter. Two extensions of up to 12 months (one year) each are available upon approval by the Administrator. In no circumstances, however, may the total period of exemption exceed 36 months (three years).

(c) Notwithstanding any other requirement of this subpart, an engine may be finally admitted into the United States under this paragraph if prior written approval for such final admission is obtained from the Administrator. Conditional admission of these engines under this subpart is not permitted for the purpose of obtaining such written approval from the Administrator. A request for approval is to contain the identification information required in §90.604(c) and information that demonstrates that the importer is entitled to the exemption or exclusion. The following exemptions or exclusions are permitted by this paragraph:

(1) National security exemption. An engine may be imported under the national security exemption found at §90.908.

(2) Hardship exemption. The Administrator may exempt on a case-by-case basis an engine from federal emission requirements to accommodate unforeseen cases of extreme hardship or extraordinary circumstances.

(3) Exemption for engines identical to United States certified versions. (i) A person (including businesses) is eligible for importing an engine into the United States under the provisions of this paragraph. An exemption will be granted if the engine:

(C) is proven to be identical, in all material respects, to an engine certified by the original equipment manufacturer (OEM) for sale in the United States or is proven to have been modified to be identical, in all material respects, to an engine certified by the OEM for sale in the United States according to complete written instructions provided by the OEM's United States representative, or his/her designee.

(ii) Proof of Conformity. (A) Documentation submitted pursuant to this section for the purpose of proving conformity of individual engines is to contain sufficiently organized data or evidence demonstrating that the engine identified pursuant to §90.604(c) is identical, in all material respects, to an engine identified in an OEM's application for certification.

(B) If the documentation does not contain all the information required by this part, or is not sufficiently organized, EPA will notify the importer of any areas of inadequacy, and that the documentation will not receive further consideration until the required information or organization is provided.

(C) If EPA determines that the documentation does not clearly or sufficiently demonstrate that an engine is eligible for importation, EPA will notify the importer in writing.

(D) If EPA determines that the documentation clearly and sufficiently demonstrates that an engine is eligible for importation, EPA will grant approval for importation and notify the importer in writing.

(d) Foreign diplomatic and military personnel may import a nonconforming engine without bond. At the time of admission, the importer shall submit to the Administrator the written report required in §90.604(a) and a statement from the U.S. Department of State confirming qualification for this exemption. Foreign military personnel may, in lieu of a statement from the U.S. Department of State, submit to the Administrator a copy of their orders for duty in the United States. The engine may not be sold in the United States and must be exported if the individual's diplomatic status is no longer applicable, as determined by the Department of State, or the foreign military orders for duty in the United States are no longer applicable, unless subsequently brought into conformity with U.S. emission requirements.

(e) Competition exclusion. A nonconforming engine may be conditionally admitted by any person provided the importer demonstrates to the Administrator that the engine is used to propel a nonroad vehicle used solely for competition and obtains prior written approval from the Administrator. A nonconforming engine imported pursuant to this paragraph may not be operated in the United States except for that operation incident and necessary for the competition purpose, unless subsequently brought into conformity with United States emission requirements in accordance with §90.612(c)(3).

(f) Exclusions/exemptions based on date of original manufacture. (1) Notwithstanding any other requirements of this subpart, engines originally manufactured prior to model year 1997 are excluded from the requirements of the Act in accordance with section 213 of the Act and may be imported by any person.

(2) Notwithstanding other requirements of this subpart, an engine not subject to an exclusion under §90.612(f)(1) but greater than 20 original production (OP) years old is entitled to an exemption from the requirements of the Act, provided that it has not been modified in those 20 OP years. At the time of admission, the importer shall submit to the Administrator the written report required in §90.604(c).

(g) Applications for exemptions and exclusions provided for in paragraphs (b), (c), and (e) of this section are to be mailed to: U.S. Environmental Protection Agency, Office of Mobile Sources, Engine Compliance Programs Group (6403–J), Washington, DC 20460, Attention: Imports.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15245, Mar. 30, 1999; 70 FR 40450, July 13, 2005]

(a) The importation of an engine which is not covered by a certificate of conformity other than in accordance with this subpart and the entry regulations of the U.S. Customs Service is prohibited. Failure to comply with this subpart is a violation of section 213(d) and section 203 of the Act.

(b) Unless otherwise permitted by this subpart, during a period of conditional admission, the importer of an engine shall not:

(c) An engine conditionally admitted pursuant to §90.612(b), (d), or (e) and not granted final admission within the period of time specified for such conditional admission in the written prior approval obtained from EPA, or within such additional time as designated by the Administrator, is deemed to be unlawfully imported into the United States in violation of section 213(d) and section 203 of the Act, unless the engine has been delivered to the U.S. Customs Service for export or other disposition under applicable Customs laws and regulations. An engine not so delivered is subject to seizure by the U.S. Customs Service.

(d) An importer who violates section 213(d) and section 203 of the Act is subject to a civil penalty under section 205 of the Act of not more than $32,500 for each engine subject to the violation. In addition to the penalty provided in the Act, where applicable, under the exemption provisions of §90.612(b), a person or entity who fails to deliver the engine to the U.S. Customs Service is liable for liquidated damages in the amount of the bond required by applicable Customs laws and regulations. The maximum penalty value listed in this paragraph (d) is shown for calendar year 2004. Maximum penalty limits for later years may be adjusted based on the Consumer Price Index. The specific regulatory provisions for changing the maximum penalties, published in 40 CFR part 19, reference the applicable U.S. Code citation on which the prohibited action is based.

The provisions for treatment of confidential information described in §90.4 apply to this subpart.

The provisions of 40 CFR 1068.330 apply for importation of partially complete engines, or engines that will be modified for applications other than those covered by this part 90.

§ 90.701 Applicability.

(a) The requirements of this subpart are applicable to all Phase 2 nonroad handheld and nonhandheld engines families subject to the provisions of subpart A of this part unless otherwise exempted in this subpart.

(b) The procedures described in this subpart are optional for small volume engine manufacturers and small volume engine families as defined in this part. Small volume engine manufacturers and small volume engine families for which the manufacturer opts not to conduct testing under this subpart pursuant to this paragraph shall remain subject to the Selective Enforcement Auditing procedures of subpart F of this part.

(c) Engine families for which the manufacturer opts to conduct in-use testing pursuant to subpart M of this part are exempt from this subpart, but shall remain subject to the Selective Enforcement Auditing procedures of subpart F of this part.

The definitions in subpart A of this part apply to this subpart. The following definitions also apply to this subpart.

Configuration means any subclassification of an engine family which can be described on the basis of gross power, emission control system, governed speed, injector size, engine calibration, and other parameters as designated by the Administrator.

Test sample means the collection of engines selected from the population of an engine family for emission testing.

(a) Manufacturers of small SI engines shall test production line engines from each engine family according to the provisions of this subpart.

(b) Production line engines must be tested using the test procedure specified in subpart E of this part except that the Administrator may approve minor variations that the Administrator deems necessary to facilitate efficient and economical testing where the manufacturer demonstrates to the satisfaction of the Administrator that such variations will not significantly impact the test results. Any adjustable engine parameter must be set to values or positions that are within the range recommended to the ultimate purchaser, unless otherwise specified by the Administrator. The Administrator may specify values within or without the range recommended to the ultimate purchaser.

(a) The manufacturer of any new small SI engine subject to any of the provisions of this subpart must establish, maintain, and retain the following adequately organized and indexed records:

(1) General records. A description of all equipment used to test engines in accordance with §90.703. Subpart D of this part sets forth relevant equipment requirements in §§90.304, 90.305, 90.306, 90.307, 90.308, 90.309, 90.310 and 90.313.

(2) Individual records. These records pertain to each production line test conducted pursuant to this subpart and include:

(ii) The number of hours of service accumulated on the test engine when the test began and ended;

(iii) The names of all supervisory personnel involved in the conduct of the production line test;

(iv) A record and description of any adjustment, repair, preparation or modification performed prior to and/or subsequent to approval by the Administrator pursuant to §90.707(b)(1), giving the date, associated time, justification, name(s) of the authorizing personnel, and names of all supervisory personnel responsible for the conduct of the repair;

(v) If applicable, the date the engine was shipped from the assembly plant, associated storage facility or port facility, and the date the engine was received at the testing facility;

(vi) A complete record of all emission tests performed pursuant to this subpart (except tests performed directly by EPA), including all individual worksheets and/or other documentation relating to each test, or exact copies thereof, in accordance with the record requirements specified in §§90.405 and 90.406; and

(vii) A brief description of any significant events during testing not otherwise described under paragraph (a)(2) of this section, commencing with the test engine selection process and including such extraordinary events as engine damage during shipment.

(3) The manufacturer must establish, maintain and retain general records, pursuant to paragraph (a)(1) of this section, for each test cell that can be used to perform emission testing under this subpart.

(b) The manufacturer must retain all records required to be maintained under this subpart for a period of one year after completion of all testing required for the engine family in a model year. Records may be retained as hard copy (i.e., on paper) or reduced to microfilm, floppy disk, or some other method of data storage, depending upon the manufacturer's record retention procedure; provided, that in every case, all the information contained in the hard copy is retained.

(c) The manufacturer must, upon request by the Administrator, submit the following information with regard to engine production:

(1) Projected production or actual production for each engine configuration within each engine family for which certification has been requested and/or approved;

(2) Number of engines, by configuration and assembly plant, scheduled for production or actually produced.

(d) Nothing in this section limits the Administrator's discretion to require a manufacturer to establish, maintain, retain or submit to EPA information not specified by this section and otherwise permitted by law.

(e) All reports, submissions, notifications, and requests for approval made under this subpart must be addressed to: Manager, Engine Compliance Programs Group (6403J), U.S. Environmental Protection Agency, Washington, DC 20460.

(f) The manufacturer must electronically submit the results of its production line testing using EPA's standardized format. The Administrator may exempt manufacturers from this requirement upon written request with supporting justification.

(a) To allow the Administrator to determine whether a manufacturer is complying with the provisions of this subpart or other subparts of this part, one or more EPA enforcement officers may enter during operating hours and upon presentation of credentials any of the following places:

(1) Any facility, including ports of entry, where any engine to be introduced into commerce or any emission-related component is manufactured, assembled, or stored;

(2) Any facility where any test conducted pursuant to this or any other subpart or any procedure or activity connected with such test is or was performed;

(4) Any facility where any record required under §90.704 or other document relating to this subpart or any other subpart of this part is located.

(b) Upon admission to any facility referred to in paragraph (a) of this section, EPA enforcement officers are authorized to perform the following inspection-related activities:

(1) To inspect and monitor any aspect of engine manufacture, assembly, storage, testing and other procedures, and to inspect and monitor the facilities in which these procedures are conducted;

(2) To inspect and monitor any aspect of engine test procedures or activities, including test engine selection, preparation and service accumulation, emission test cycles, and maintenance and verification of test equipment calibration;

(3) To inspect and make copies of any records or documents related to the assembly, storage, selection, and testing of an engine; and

(4) To inspect and photograph any part or aspect of any engine and any component used in the assembly thereof that is reasonably related to the purpose of the entry.

(c) EPA enforcement officers are authorized to obtain reasonable assistance without cost from those in charge of a facility to help the officers perform any function listed in this subpart and they are authorized to request the manufacturer to make arrangements with those in charge of a facility operated for the manufacturer's benefit to furnish reasonable assistance without cost to EPA.

(1) Reasonable assistance includes, but is not limited to, clerical, copying, interpretation and translation services; the making available on an EPA enforcement officer's request of personnel of the facility being inspected during their working hours to inform the EPA enforcement officer of how the facility operates and to answer the officer's questions; and the performance on request of emission tests on any engine which is being, has been, or will be used for production line or other testing.

(2) By written request, signed by the Assistant Administrator for Air and Radiation, and served on the manufacturer, a manufacturer may be compelled to cause the personal appearance of any employee at such a facility before an EPA enforcement officer. Any such employee who has been instructed by the manufacturer to appear will be entitled to be accompanied, represented, and advised by counsel.

(d) EPA enforcement officers are authorized to seek a warrant or court order authorizing the EPA enforcement officers to conduct the activities authorized in this section, as appropriate, to execute the functions specified in this section. EPA enforcement officers may proceed ex parte to obtain a warrant or court order whether or not the EPA enforcement officers first attempted to seek permission from the manufacturer or the party in charge of the facility(ies) in question to conduct the activities authorized in this section.

(e) A manufacturer must permit an EPA enforcement officer(s) who presents a warrant or court order to conduct the activities authorized in this section as described in the warrant or court order. The manufacturer must also cause those in charge of its facility or a facility operated for its benefit to permit entry and access as authorized in this section pursuant to a warrant or court order whether or not the manufacturer controls the facility. In the absence of a warrant or court order, an EPA enforcement officer(s) may conduct the activities authorized in this section only upon the consent of the manufacturer or the party in charge of the facility(ies) in question.

(f) It is not a violation of this part or the Clean Air Act for any person to refuse to permit an EPA enforcement officer(s) to conduct the activities authorized in this section if the officer(s) appears without a warrant or court order.

(g) A manufacturer is responsible for locating its foreign testing and manufacturing facilities in jurisdictions where local law does not prohibit an EPA enforcement officer(s) from conducting the entry and access activities specified in this section. EPA will not attempt to make any inspections which it has been informed local foreign law prohibits.

(a) At the start of each model year, the small SI engine manufacturer will begin to randomly select engines from each engine family for production line testing at a rate of one percent of the projected production of that family. Each engine will be selected from the end of the assembly line.

(1) For newly certified engine families: After two engines are tested, the manufacturer will calculate the required sample size for the model year for each pollutant (HC+NO_X(NMHC+NO_X) and CO) according to the Sample Size Equation in paragraph (b) of this section.

(2) For carry-over engine families: After one engine is tested, the manufacturer will combine the test with the last test result from the previous model year and then calculate the required sample size for the model year for each pollutant according to the Sample Size Equation in paragraph (b) of this section.

(b)(1) Manufacturers will calculate the required sample size for the model year for each pollutant for each engine family using the Sample Size Equation in this paragraph. N is calculated for each pollutant from each test result. The higher of the two values for the number N indicates the number of tests required for the model year for an engine family. N is recalculated for each pollutant after each test. Test results used to calculate the variables in the following Sample Size Equation must be final deteriorated test results as specified in §90.709(c).

₉₅= 95% confidence coefficient. It is dependent on the actual number of tests completed, n, as specified in the table in paragraph (b)(2) of this section. It defines one-tail, 95% confidence intervals.

σ = actual test sample standard deviation calculated from the following equation:

(2) The following table specifies the Actual Number of Tests (n) & 1-tail Confidence Coefficients (t₉₅):

(3) A manufacturer must distribute the testing of the remaining number of engines needed to meet the required sample size N, evenly throughout the remainder of the model year.

(4) After each new test, the required sample size, N, is recalculated using updated sample means, sample standard deviations and the appropriate 95% confidence coefficient.

(5) A manufacturer must continue testing and updating each engine family's sample size calculations according to paragraphs (b)(1) through (b)(4) of this section until a decision is made to stop testing as described in paragraph (b)(6) of this section or a noncompliance decision is made pursuant to §90.710(b).

(6) If, at any time throughout the model year, the calculated required sample size, N, for an engine family is less than or equal to the actual sample size, n, and the sample mean, x, for HC + NO_X(NMHC+NO_X) and CO is less than or equal to the FEL or standard if no FEL, the manufacturer may stop testing that engine family.

(7) If, at any time throughout the model year, the sample mean, x, for HC + NO_X(NMHC+NO_X) or CO is greater than the FEL or standard if no FEL, the manufacturer must continue testing that engine family at the appropriate maximum sampling rate.

(8) The maximum required sample size for an engine family (regardless of the required sample size, N, as calculated in paragraph (b)(1) of this section) is the lesser of thirty tests per model year or one percent of projected annual production for that engine family for that model year.

(9) Manufacturers may elect to test additional engines. Additional engines, whether tested in accordance with the testing procedures specified in §90.707 or not, may not be included in the Sample Size and Cumulative Sum equation calculations as defined in paragraph (b)(1) of this section and §90.708(a), respectively. However, such additional test results may be used as appropriate to “bracket” or define the boundaries of the production duration of any emission nonconformity determined under this subpart. Such additional test data must be identified and provided to EPA with the submittal of the official CumSum results.

(c) The manufacturer must produce and assemble the test engines using its normal production and assembly process for engines to be distributed into commerce.

(d) No quality control, testing, or assembly procedures shall be used on any test engine or any portion thereof, including parts and subassemblies, that have not been or will not be used during the production and assembly of all other engines of that family, unless the Administrator approves the modification in production or assembly procedures in advance.

[64 FR 15245, Mar. 30, 1999; 64 FR 34313, June 25, 1999; 64 FR 35256, June 30, 1999; 64 FR 36423, July 6, 1999; 70 FR 40450, July 13, 2005]

(a)(1) For small SI engines subject to the provisions of this subpart, the prescribed test procedures are specified in subpart E of this part.

(2) The Administrator may, on the basis of a written application by a manufacturer, prescribe test procedures other than those specified in paragraph (a)(1) of this section for any small SI engine the Administrator determines is not susceptible to satisfactory testing using procedures specified in paragraph (a)(1) of this section.

(b)(1) The manufacturer may not adjust, repair, prepare, or modify any test engine and may not perform any emission test on any test engine unless this adjustment, repair, preparation, modification and/or test is documented in the manufacturer's engine assembly and inspection procedures and is actually performed by the manufacturer on every production line engine or unless this adjustment, repair, preparation, modification and/or test is required or permitted under this subpart or is approved in advance by the Administrator.

(2) The Administrator may adjust or cause to be adjusted any engine parameter which the Administrator has determined to be subject to adjustment for certification, Production Line Testing and Selective Enforcement Audit testing, to any setting within the physically adjustable range of that parameter, as determined by the Administrator, prior to the performance of any test. However, if the idle speed parameter is one which the Administrator has determined to be subject to adjustment, the Administrator may not adjust it or require that it be adjusted to any setting which causes a lower engine idle speed than would have been possible within the physically adjustable range of the idle speed parameter if the manufacturer had accumulated 12 hours of service on the engine under paragraph (c) of this section, all other parameters being identically adjusted for the purpose of the comparison. The manufacturer may be requested to supply information necessary to establish an alternate minimum idle speed. The Administrator, in making or specifying these adjustments, may consider the effect of the deviation from the manufacturer's recommended setting on emission performance characteristics as well as the likelihood that similar settings will occur on in-use engines. In determining likelihood, the Administrator may consider factors such as, but not limited to, the effect of the adjustment on engine performance characteristics and information from similar in-use engines.

(c) Service accumulation. (1) Unless otherwise approved by the Administrator, prior to performing exhaust emission production line testing, the manufacturer may accumulate up to 12 hours of service on each test engine. For catalyst-equipped engines, the manufacturer must accumulate a number of hours equal to the number of hours accumulated to represent stabilized emissions on the engine used to obtain certification.

(2) Service accumulation must be performed in a manner using good engineering judgment to obtain emission results representative of production line engines.

(d) Unless otherwise approved by the Administrator, the manufacturer may not perform any maintenance on test engines after selection for testing.

(e) If an engine is shipped to a remote facility for production line testing, and an adjustment or repair is necessary because of shipment, the engine manufacturer must perform the necessary adjustment or repair only after the initial test of the engine, except in cases where the Administrator has determined that the test would be impossible or unsafe to perform or would permanently damage the engine. Engine manufacturers must report to the Administrator, in the quarterly report required by §90.709(e), all adjustments or repairs performed on test engines prior to each test.

(g) Testing. A manufacturer must test engines with the test procedure specified in subpart E of this part to demonstrate compliance with the applicable FEL (or standard where there is no FEL). If alternate or special test procedures pursuant to regulations at §90.120 are used in certification, then those alternate procedures must be used in production line testing.

(h) Retesting. (1) If an engine manufacturer reasonably determines that an emission test of an engine is invalid because of a procedural error, test equipment problem, or engine performance problem that causes the engine to be unable to safely perform a valid test, the engine may be retested. A test is not invalid simply because the emission results are high relative to other engines of the family. Emission results from all tests must be reported to EPA. The engine manufacturer must also include a detailed explanation of the reasons for invalidating any test in the quarterly report required in §90.709(e). If a test is invalidated because of an engine performance problem, the manufacturer must document in detail the nature of the problem and the repairs performed in order to use the after-repair test results for the original test results.

(2) Routine retests may be conducted if the manufacturer conducts the same number of tests on all engines in the family. The results of these tests must be averaged according to procedures of §90.709.

(a) (1) Manufacturers must construct separate CumSum Equations for each regulated pollutant (HC+NO_X(NMHC+NO_X) and CO) for each engine family. Test results used to calculate the variables in the CumSum Equations must be final deteriorated test results as defined in §90.709(c). The CumSum Equation is constructed as follows:

C_i-1=The previous CumSum statistic. Prior to any testing, the CumSum statistic=0 (i.e. C₀=0).

(2) After each test pursuant to paragraph (a)(1) of this section, C_iis compared to the action limit, H, the quantity which the CumSum statistic must exceed, in two consecutive tests, before the engine family may be determined to be in noncompliance for a regulated pollutant for purposes of §90.710.

H=The Action Limit. It is 5.0×σ, and is a function of the standard deviation, σ.

(b) After each engine is tested, the CumSum statistic shall be promptly updated according to the CumSum Equation in paragraph (a) of this section.

(c)(1) If, at any time during the model year, a manufacturer amends the application for certification for an engine family as specified in §90.122(a) by performing an engine family modification (i.e. a change such as a running change involving a physical modification to an engine, a change in specification or setting, the addition of a new configuration, or the use of a different deterioration factor) with no changes to the FEL (where applicable), all previous sample size and CumSum statistic calculations for the model year will remain unchanged.

(2) If, at any time during the model year, a manufacturer amends the application for certification for an engine family as specified in §90.122 (a) by modifying its FEL (where applicable) for future production, as a result of an engine family modification, the manufacturer must continue its calculations by inserting the new FEL into the sample size equation as specified in §90.706(b)(1) and into the CumSum equation in paragraph (a) of this section. All previous calculations remain unchanged. If the sample size calculation indicates that additional tests are required, then those tests must be performed. CumSum statistic calculations must not indicate that the family has exceeded the action limit for two consecutive tests. Where applicable, the manufacturer's final credit report as required by §90.210 must break out the credits that result from each FEL and corresponding CumSum analysis for the set of engines built to each FEL.

(3) If, at any time during the model year, a manufacturer amends the application for certification for an engine family as specified in §90.122 (a) (or for an affected part of the year's production in cases where there were one or more mid-year engine family modifications), by modifying its FEL (where applicable) for past and/or future production, without performing an engine modification, all previous sample size and CumSum statistic calculations for the model year must be recalculated using the new FEL. If the sample size calculation indicates that additional tests are required, then those tests must be performed. The CumSum statistic recalculation must not indicate that the family has exceeded the action limit for two consecutive tests. Where applicable, the manufacturer's final credit report as required by §90.210 must break out the credits that result from each FEL and corresponding CumSum analysis for the set of engines built to each FEL.

(a) Initial test results are calculated following the applicable test procedure specified in §90.707 (a). The manufacturer rounds these results to the number of decimal places contained in the applicable emission standard expressed to one additional significant figure.

(b) Final test results are calculated by summing the initial test results derived in paragraph (a) of this section for each test engine, dividing by the number of tests conducted on the engine, and rounding to the same number of decimal places contained in the applicable standard expressed to one additional significant figure.

(c) The final deteriorated test results for each test engine are calculated by applying the appropriate deterioration factors, derived in the certification process for the engine to the final test results, and rounding to the same number of decimal places contained in the applicable standard.

(d) If, at any time during the model year, the CumSum statistic exceeds the applicable action limit, H, in two consecutive tests for any regulated pollutant, (HC+NO_X(NMHC+NO_X) or CO) the engine family may be determined to be in noncompliance and the manufacturer must notify EPA by contacting its official EPA certification representative within ten working days of such exceedance by the CumSum statistic.

(e) Within 45 calendar days of the end of each quarter, each engine manufacturer must submit to the Administrator a report which includes the following information:

(1) The location and description of the manufacturer's or other's exhaust emission test facilities which were utilized to conduct testing reported pursuant to this section;

(ii) Location where service accumulation was conducted and description of accumulation procedure and schedule;

(iii) Test number, date, test procedure used, initial test results before and after rounding, final test results before and after rounding and final deteriorated test results for all exhaust emission tests, whether valid or invalid, and the reason for invalidation, if applicable;

(iv) A complete description of any adjustment, modification, repair, preparation, maintenance, and/or testing which was performed on the test engine, was not reported pursuant to any other paragraph of this subpart, and will not be performed on all other production engines;

(v) A CumSum analysis, as required in §90.708, of the production line test results for each engine family; and

(vi) Any other information the Administrator may request relevant to the determination whether the new engines being manufactured by the manufacturer do in fact conform with the regulations with respect to which the certificate of conformity was issued;

(7) For each failed engine as defined in §90.710(a), a description of the remedy and test results for all retests as required by §90.711(g);

(8) The date of the end of the engine manufacturer's model year production for each engine family; and

(9) The following signed statement and endorsement by an authorized representative of the manufacturer:

This report is submitted pursuant to Sections 213 and 208 of the Clean Air Act. This production line testing program was conducted in complete conformance with all applicable regulations under 40 CFR Part 90. No emission-related changes to production processes or quality control procedures for the engine family tested have been made during this production line testing program that affect engines from the production line. All data and information reported herein is, to the best of (Company Name) knowledge, true and accurate. I am aware of the penalties associated with violations of the Clean Air Act and the regulations thereunder. (Authorized Company Representative.)

(a) A failed engine is one whose final deteriorated test results pursuant to §90.709(c), for HC+NO_X(NMHC+NO_X) or CO exceeds the applicable Family Emission Limit (FEL) or standard if no FEL.

(b) An engine family shall be determined to be in noncompliance, if at any time throughout the model year, the CumSum statistic, C_i, for HC+NO_X(NMHC+NO_X) or CO, is greater than the action limit, H, for that pollutant, for two consecutive tests.

(a) The certificate of conformity is suspended with respect to any engine failing pursuant to §90.710(a) effective from the time that testing of that engine is completed.

(b) The Administrator may suspend the certificate of conformity for an engine family which is determined to be in noncompliance pursuant to §90.710(b). This suspension will not occur before thirty days after the engine family is determined to be in noncompliance and the Administrator has notified the manufacturer of its intent to suspend. During this thirty day period the Administrator will work with the manufacturer to achieve appropriate production line changes to avoid the need to halt engine production, if possible. The Administrator will approve or disapprove any such production line changes proposed to address a family that has been determined to be in noncompliance under this subpart within 15 days of receipt. If the Administrator does not approve or disapprove such a proposed change within such time period, the proposed change shall be considered approved.

(c) If the results of testing pursuant to the regulations in this subpart indicate that engines of a particular family produced at one plant of a manufacturer do not conform to the regulations in this part with respect to which the certificate of conformity was issued, the Administrator may suspend the certificate of conformity with respect to that family for engines manufactured by the manufacturer at all other plants.

(d) Notwithstanding the fact that engines described in the application for certification may be covered by a certificate of conformity, the Administrator may suspend such certificate immediately in whole or in part if the Administrator finds any one of the following infractions to be substantial:

(1) The manufacturer refuses to comply with any of the requirements of this subpart.

(2) The manufacturer submits false or incomplete information in any report or information provided to the Administrator under this subpart.

(3) The manufacturer renders inaccurate any test data submitted under this subpart.

(4) An EPA enforcement officer is denied the opportunity to conduct activities authorized in this subpart and a warrant or court order is presented to the manufacturer or the party in charge of the facility in question.

(5) An EPA enforcement officer is unable to conduct activities authorized in §90.705 because a manufacturer has located its facility in a foreign jurisdiction where local law prohibits those activities.

(f) The Administrator may revoke a certificate of conformity for an engine family after the certificate has been suspended pursuant to paragraph (b) or (c) of this section if the proposed remedy for the nonconformity, as reported by the manufacturer to the Administrator, is one requiring a design change or changes to the engine and/or emission control system as described in the application for certification of the affected engine family.

(g) Once a certificate has been suspended for a failed engine, as provided for in paragraph (a) of this section, the manufacturer must take the following actions before the certificate is reinstated for that failed engine:

(2) Demonstrate that the engine conforms to the applicable standards (FELs, where applicable) by retesting the engine in accordance with these regulations; and

(3) Submit a written report to the Administrator, described in §90.709(e)(7), after successful completion of testing on the failed engine, which contains a description of the remedy and test results for each engine in addition to other information that may be required by this part.

(h) Once a certificate for a failed engine family has been suspended pursuant to paragraph (b) or (c) of this section, the manufacturer must take the following actions before the Administrator will consider reinstating the certificate:

(2) Demonstrate that the engine family for which the certificate of conformity has been suspended does in fact comply with the regulations of this part by testing as many engines as needed so that the CumSum statistic, as calculated in §90.708(a), falls below the action limit. Such testing must comply with the provisions of this part. If the manufacturer elects to continue testing individual engines after suspension of a certificate, the certificate is reinstated for any engine actually determined to be in conformance with the Family Emission Limits (or standards if no FEL) through testing in accordance with the applicable test procedures, provided that the Administrator has not revoked the certificate pursuant to paragraph (f) of this section.

(i) Once the certificate has been revoked for an engine family, if the manufacturer desires to continue introduction into commerce of a modified version of that family, the following actions must be taken before the Administrator may issue a certificate for that modified family:

(1) If the Administrator determines that the proposed change(s) in engine design may have an effect on emission performance deterioration, the Administrator shall notify the manufacturer within five working days after receipt of the report in paragraph (h)(1) of this section whether subsequent testing under this subpart will be sufficient to evaluate the proposed change or changes or whether additional testing will be required;

(2) After implementing the change or changes intended to remedy the nonconformity, the manufacturer must demonstrate that the modified engine family does in fact conform with the regulations of this part by testing as many engines as needed from the modified engine family so that the CumSum statistic, as calculated in §90.708(a) using the newly assigned FEL if applicable, falls below the action limit; and

(3) When the requirements of paragraphs (i)(1) and (i)(2) of this section are met, the Administrator shall reissue the certificate or issue a new certificate, as the case may be, to include that family. As long as the CumSum statistic remains above the action limit, the revocation remains in effect.

(j) At any time subsequent to a suspension of a certificate of conformity for a test engine pursuant to paragraph (a) of this section, but not later than 15 days (or such other period as may be allowed by the Administrator) after notification of the Administrator's decision to suspend or revoke a certificate of conformity in whole or in part pursuant to paragraph (b), (c), or (f) of this section, a manufacturer may request a hearing as to whether the tests have been properly conducted or any sampling methods have been properly applied.

(k) Any suspension of a certificate of conformity under paragraph (d) of this section shall:

(1) Be made only after the manufacturer concerned has been offered an opportunity for a hearing conducted in accordance with §§90.712 and 90.713; and

(l) After the Administrator suspends or revokes a certificate of conformity pursuant to this section and prior to the commencement of a hearing under §90.712, if the manufacturer demonstrates to the Administrator's satisfaction that the decision to suspend or revoke the certificate was based on erroneous information, the Administrator shall reinstate the certificate.

(m) To permit a manufacturer to avoid storing non-test engines while conducting subsequent testing of the noncomplying family, a manufacturer may request that the Administrator conditionally reinstate the certificate for that family. The Administrator may reinstate the certificate subject to the following condition: the manufacturer must commit to performing offsetting measures that remedy the nonconformity at no expense to the owners, and which are approved in advance by the Administrator for all engines of that family produced from the time the certificate is conditionally reinstated if the CumSum statistic does not fall below the action limit.

(a) If the manufacturer disagrees with the Administrator's decision to suspend or revoke a certificate or disputes the basis for an automatic suspension pursuant to §90.711(a), the manufacturer may request a public hearing.

(b) The manufacturer's request shall be filed with the Administrator not later than 15 days after the Administrator's notification of his or her decision to suspend or revoke, unless otherwise specified by the Administrator. The manufacturer shall simultaneously serve two copies of this request upon the Manager of the Engine Compliance Programs Group and file two copies with the Hearing Clerk for the Agency. Failure of the manufacturer to request a hearing within the time provided constitutes a waiver of the right to a hearing. Subsequent to the expiration of the period for requesting a hearing as of right, the Administrator may, in his or her discretion and for good cause shown, grant the manufacturer a hearing to contest the suspension or revocation.

(1) A statement as to which engine configuration(s) within a family is to be the subject of the hearing; and

(2) A concise statement of the issues to be raised by the manufacturer at the hearing, except that in the case of the hearing requested under §90.711(j), the hearing is restricted to the following issues:

(ii) Whether sampling plans and statistical analyses have been properly applied (specifically, whether sampling procedures and statistical analyses specified in this subpart were followed and whether there exists a basis for distinguishing engines produced at plants other than the one from which engines were selected for testing which would invalidate the Administrator's decision under §90.711(c));

(3) A statement specifying reasons why the manufacturer believes it will prevail on the merits of each of the issues raised; and

(4) A summary of the evidence which supports the manufacturer's position on each of the issues raised.

(d) A copy of all requests for public hearings will be kept on file in the Office of the Hearing Clerk and will be made available to the public during Agency business hours.

The administrative procedures for a public hearing requested under this subpart shall be those procedures set forth in the regulations found at §§90.513 through 90.516. References in §90.513 to §90.511(j), §90.512(c)(2), §90.511(e), §90.512, §90.511(d), §90.503, §90.512(c) and §90.512(b) shall be deemed to mean §90.711(j), §90.712(c)(2), §90.711(e), §90.712, §90.711(d), §90.703, and §90.712(c) and §90.712(b), respectively. References to “test orders” in §90.513 are not applicable.

(a) The requirements of subpart I are applicable to all nonroad engines and vehicles subject to the provisions of subpart A of part 90. The requirement to report emission-related defects affecting a given class or category of engines will remain applicable for five years from the end of the calendar year in which such engines were manufactured.

(b) Phase 2 engines subject to provisions of subpart B of this part are subject to recall regulations specified in 40 CFR part 85, subpart S, except as otherwise provided in this section.

(c) Reference to section 214 of the Clean Air Act in 40 CFR 85.1801(a) is deemed to mean section 216 of the Clean Air Act.

(d) Reference to section 202 of the Act in 40 CFR 85.1802(a) is deemed to mean section 213 of the Act.

(e) Reference to “family particulate emission limits” as defined in part 86 promulgated under section 202 of the Act” in 40 CFR 85.1803(a) and 85.1805(a)(1) is deemed to mean “family emission limits” as defined in subpart C of this part 90 promulgated under section 213 of the Act”.

(f) Reference to “vehicles or engines” throughout 40 CFR part 85, subpart S is deemed to mean “Phase 2 nonroad small SI engines at or below 19 kW.”

(g) In addition to the requirements in 40 CFR 85.1805(a)(9) for Phase 2 engines include a telephone number provided by the manufacturer, which may be used to report difficulty in obtaining recall repairs.

The definitions in subpart A of this part apply to this subpart. All terms not defined herein or in subpart A have the meaning given them in the Act. The definitions of 40 CFR 85.1801 also apply to this part.

Emission-related defect means a defect in design, materials, or workmanship in a device, system, or assembly described in the approved application for certification which affects any applicable parameter or specification enumerated in 40 CFR part 85, Appendix VIII.

Voluntary emission recall means a repair, adjustment, or modification program voluntarily initiated and conducted by a manufacturer to remedy any emission-related defect for which notification of engine owners has been provided.

(a) A manufacturer must file a defect information report whenever, on the basis of data obtained subsequent to the effective date of these regulations:

(1) The manufacturer determines, in accordance with procedures established by the manufacturer to identify either safety-related or performance defects, that a specific emission-related defect exists; and

(2) A specific emission-related defect exists in 25 or more engines of a given engine family manufactured in the same certificate or model year.

(b) No report must be filed under this section for any emission-related defect corrected prior to the sale of the affected engines to ultimate purchasers.

(c) The manufacturer must submit defect information reports to EPA's Engine Compliance Programs Group not more than 15 working days after an emission-related defect is found to affect 25 or more engines manufactured in the same certificate or model year. Information required by paragraph (d) of this section that is either not available within 15 working days or is significantly revised must be submitted to EPA's Engine Compliance Programs Group as it becomes available.

(d) Each defect report must contain the following information in substantially the format outlined below:

(3) A description of each class or category of engines potentially affected by the defect including make, model, model year, calendar year produced, and any other information required to identify the engines affected.

(4) For each class or category of engine described in response to paragraph (d)(3) of this section, the following must also be provided:

(i) The number of engines known or estimated to have the defect and an explanation of the means by which this number was determined.

(ii) The address of the plant(s) at which the potentially defective engines were produced.

(5) An evaluation of the emissions impact of the defect and a description of any operational problems which a defective engine might exhibit.

(a) When any manufacturer initiates a voluntary emissions recall campaign involving 25 or more engines, the manufacturer must submit a report describing the manufacturer's voluntary emissions recall plan as prescribed by this section within 15 working days of the date owner notification was begun. The report must contain the following:

(1) A description of each class or category of engines recalled including the number of engines to be recalled, the model year, the make, the model, and such other information as may be required to identify the engines recalled;

(2) A description of the specific modifications, alterations, repairs, corrections, adjustments, or other changes to be made to correct the engines affected by the emission-related defect;

(3) A description of the method by which the manufacturer will notify engine owners and, if applicable, the method by which the manufacturer will determine the names and addresses of engine owners;

(4) A description of the proper maintenance or use, if any, upon which the manufacturer conditions eligibility for repair under the recall plan, an explanation of the manufacturer's reasons for imposing any such conditions, and a description of the proof to be required of an engine owner to demonstrate compliance with any such conditions;

(5) A description of the procedure to be followed by engine owners to obtain correction of the nonconformity. This may include designation of the date on or after which the owner can have the nonconformity remedied, the time reasonably necessary to perform the labor to remedy the defect, and the designation of facilities at which the defect can be remedied;

(6) A description of the class of persons other than dealers and authorized warranty agents of the manufacturer who will remedy the defect;

(7) When applicable, three copies of any letters of notification to be sent engine owners;

(8) A description of the system by which the manufacturer will assure that an adequate supply of parts is available to perform the repair under the plan, and that the supply remains both adequate and responsive to owner demand;

(9) Three copies of all necessary instructions to be sent to those persons who are to perform the repair under the recall plan;

(10) A description of the impact of the proposed changes on fuel consumption, performance, and safety of each class or category of engines to be recalled;

(11) A sample of any label to be applied to engines which participated in the voluntary recall campaign.

(b) The manufacturer must submit at least one report on the progress of the recall campaign. Such report must be submitted no later than 18 months from the date notification was begun and include the following information:

(1) The methods used to notify both engine owners, dealers and other individuals involved in the recall campaign;

(2) The number of engines known or estimated to be affected by the emission-related defect and an explanation of the means by which this number was determined;

(4) The number of engines determined to be ineligible for remedial action due to a failure to properly maintain or use such engines.

(a) Send the defect report, voluntary recall plan, and the voluntary recall progress report to: Group Manager, Engine Compliance Programs Group, (6403–J), Environmental Protection Agency, Washington, DC 20460.

(b) Retain the information gathered by the manufacturer to compile the reports for not less than five years from the date of the manufacture of the engines. The manufacturer must make this information available to duly authorized officials of the EPA upon request.

The filing of any report under the provisions of this subpart does not affect a manufacturer's responsibility to file reports or applications, obtain approval, or give notice under any provision of law.

(a) The act of filing an Emission Defect Information Report is inconclusive as to the existence of a defect subject to the warranty provided by subpart L of this part.

(b) A manufacturer may include on each page of its Emission Defect Information Report a disclaimer stating that the filing of a Defect Information Report pursuant to these regulations is not conclusive as to the applicability of the warranty provided by subpart L of this part.

(1) If the Administrator determines that a substantial number of any class or category of engines, although properly maintained and used, do not conform to the regulations prescribed under section 213 of the Act when in actual use throughout their useful life (as defined under §90.105), the Administrator shall immediately notify the manufacturer of such nonconformity and require the manufacturer to submit a plan for remedying the nonconformity of the engines with respect to which such notification is given.

(i) The manufacturer's plan shall provide that the nonconformity of any such engines which are properly used and maintained will be remedied at the expense of the manufacturer.

(ii) If the manufacturer disagrees with such determination of nonconformity and so advises the Administrator, the Administrator shall afford the manufacturer and other interested persons an opportunity to present their views and evidence in support thereof at a public hearing. Unless, as a result of such hearing, the Administrator withdraws such determination of nonconformity, the Administrator shall, within 60 days after the completion of such hearing, order the manufacturer to provide prompt notification of such nonconformity in accordance with paragraph (a)(2) of this section. The manufacturer shall comply in all respects with the requirements of this subpart.

(2) Any notification required to be given by the manufacturer under paragraph (a)(1) of this section with respect to any class or category of engines shall be given to dealers, ultimate purchasers, and subsequent purchasers (if known) in such manner and containing such information as required in subparts I and M of this part.

(3)(i) Prior to an EPA ordered recall, the manufacturer may perform a voluntary emissions recall pursuant to regulations at §90.804. Such manufacturer is subject to the reporting and recordkeeping requirements of §90.805.

(ii) Once EPA determines that a substantial number of engines fail to conform with the requirements of section 213 of the Act or this part, the manufacturer will not have the option of a voluntary recall.

(b) The manufacturer bears all cost obligation a dealer incurs as a result of a requirement imposed by paragraph (a) of this section. The transfer of any such cost obligation from a manufacturer to a dealer through franchise or other agreement is prohibited.

(c) Any inspection of an engine for purposes of paragraph (a)(1) of this section, after its sale to the ultimate purchaser, is to be made only if the owner of such vehicle or engine voluntarily permits such inspection to be made, except as may be provided by any state or local inspection program.

The requirements of subpart J are applicable to all nonroad engines and vehicles subject to the provisions of subpart A of part 90.

The definitions in subpart A of this part apply to this subpart. The following definitions also apply to this subpart:

Export exemption means an exemption granted under §90.1004(b) for the purpose of exporting new nonroad engines.

National security exemption means an exemption granted under §90.1004(b) for the purpose of national security.

Manufacturer-owned nonroad engine means an uncertified nonroad engine owned and controlled by a nonroad engine manufacturer and used in a manner not involving lease or sale by itself or in a vehicle employed from year to year in the ordinary course of business for product development, production method assessment, and market promotion purposes.

Testing exemption means an exemption granted under §90.1004(b) for the purpose of research, investigations, studies, demonstrations or training, but not including national security.

(a) For the purpose of determining the applicability of section 216(10) of the Act, an internal combustion engine (including the fuel system) that is not used in a motor vehicle is deemed a nonroad engine, if it meets the definition in subpart A of this part. For the purpose of determining the applicability of section 216(11) of the Act, a vehicle powered by a nonroad engine is deemed a nonroad vehicle, if it meets the definition in subpart A of this part.

(b) EPA will maintain a list of models of nonroad engines and models of nonroad vehicles that have been determined to be excluded because they are used solely for competition. This list will be available to the public and may be obtained by writing to the following address: Group Manager, Engine Compliance Programs Group, Engine Programs and Compliance Division (6403J) Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

(c) Upon written request with supporting documentation, EPA will make written determinations as to whether certain engines are or are not nonroad engines. Engines that are determined not to be nonroad engines are excluded from regulations under this part.

(b) Any nonroad engine manufacturer may request a national security exemption under §90.908.

(c) For nonroad engine manufacturers, nonroad engines manufactured for export purposes are exempt without application, subject to the provisions of §90.909.

(d) For eligible manufacturers, as determined by §90.906, manufacturer-owned nonroad engines are exempt without application, subject to the provisions of §90.906.

(e) For any person, display nonroad engines are exempt without application, subject to the provisions of §90.907.

(1) That the proposed test program has a purpose which constitutes an appropriate basis for an exemption in accordance with §90.1004(b), and in accordance with subsection (b) of this section;

(2) That the proposed test program necessitates the granting of an exemption, in accordance with subsection (c) of this section;

(3) That the proposed test program exhibits reasonableness in scope, in accordance with subsection (d) of this section; and

(4) That the proposed test program exhibits a degree of control consonant with the purpose of the program and EPA's monitoring requirements, in accordance with subsection (e) of this section.

(b) With respect to the purpose of the proposed test program, an appropriate purpose would be research, investigations, studies, demonstrations, or training, but not national security. A concise statement of purpose is a required item of information.

(c) With respect to the necessity that an exemption be granted, necessity arises from an inability to achieve the stated purpose in a practicable manner without performing or causing to be performed one or more of the prohibited acts under §90.1003. In appropriate circumstances, time constraints may be a sufficient basis for necessity, but the cost of certification alone, in the absence of extraordinary circumstances, is not a basis for necessity.

(d) With respect to reasonableness, a test program must exhibit a duration of reasonable length and affect a reasonable number of engines. In this regard, required items of information include:

(e) With respect to control, the test program must incorporate procedures consistent with the purpose of the test and be capable of affording EPA monitoring capability. As a minimum, required items of information include:

(6) The manner in which the engines used in the test will be identified, and that identification recorded, and made available; and

(f) A manufacturer of new nonroad engines may request a testing exemption to cover nonroad engines intended for use in test programs planned or anticipated over the course of a subsequent one-year period. Unless otherwise required by the Director, Engine Programs and Compliance Division, a manufacturer requesting such an exemption need only furnish the information required by paragraphs (a)(1) and (d)(2) of this section along with a description of the recordkeeping and control procedures that will be employed to assure that the engines are used for purposes consistent with §90.1004(b).

(a) Any manufacturer owned nonroad engine, as defined by §90.902, is exempt from §90.1003, without application, if the manufacturer complies with the following terms and conditions:

(1) The manufacturer must establish, maintain, and retain the following adequately organized and indexed information on each exempted engine:

(2) The manufacturer must provide right of entry and access to these records to EPA authorized representatives as required by §90.506.

(3) Unless the requirement is waived or an alternative procedure is approved by the Director, Engine Programs and Compliance Division, the manufacturer must permanently affix a label to each nonroad engine on exempt status. This label should:

(ii) Be attached in such a manner that it cannot be removed without destruction or defacement;

(iii) State in the English language and in block letters and numerals of a color that contrasts with the background of the label, the following information:

(C) Engine displacement, engine family identification, and model year of engine; or person or office to be contacted for further information about the engine;

(D) The statement “This nonroad engine is exempt from the prohibitions of 40 CFR 90.1003.”

(4) No provision of paragraph (a)(3) of this section prevents a manufacturer from including any other information it desires on the label.

Where an uncertified nonroad engine is a display engine to be used solely for display purposes, will only be operated incident and necessary to the display purpose, and will not be sold unless an applicable certificate of conformity has been received or the engine has been finally admitted pursuant to subpart G of this part, no request for exemption of the engine is necessary.

(a)(1) Any nonroad engine, otherwise subject to this part, which is used in a vehicle or equipment that exhibits substantial features ordinarily associated with military combat such as armor and/or permanently affixed weaponry and which will be owned and/or used by an agency of the federal government with responsibility for national defense, will be considered exempt from this part for purposes of national security. No request for exemption is necessary.

(2) Manufacturers may request a national security exemption for any nonroad engine, otherwise subject to this part, which does not meet the conditions described in paragraph (a)(1) of this section. A manufacturer requesting a national security exemption must state the purpose for which the exemption is required and the request must be endorsed by an agency of the federal government charged with responsibility for national defense.

(b) EPA will maintain a list of models of nonroad engines (and the vehicles or equipment which use them) that have been granted a national security exemption under paragraph (a)(2) of this section. This list will be available to the public and may be obtained by writing to the following address: Group Manager, Engine Compliance Programs Group, Engine Programs and Compliance Division (6403J) Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

(a) A new nonroad engine intended solely for export, and so labeled or tagged on the outside of the container and on the engine itself, is subject to the provisions of §90.1003, unless the importing country has new nonroad engine emission standards which differ from EPA standards.

(b) For the purpose of paragraph (a) of this section, a country having no standards, whatsoever, is deemed to be a country having emission standards which differ from EPA standards.

(c) EPA will maintain a list of foreign countries that have in force nonroad emission standards identical to U.S. EPA standards and have so notified EPA. This list may be obtained by writing to the following address: Group Manager, Engine Compliance Programs Group, Engine Programs and Compliance Division (6403–J), Environmental Protection Agency, Washington, DC 20460. New nonroad engines exported to such countries must comply with U.S. EPA certification regulations.

(d) It is a condition of any exemption for the purpose of export under §90.1004(b) that such exemption be void ab initio with respect to a new nonroad engine intended solely for export if such nonroad engine is sold, or offered for sale, to an ultimate purchaser in the United States for purposes other than export.

(a) If upon completion of the review of an exemption request made pursuant to §90.905 or §90.908, EPA determines it is appropriate to grant such an exemption, a memorandum of exemption is to be prepared and submitted to the person requesting the exemption. The memorandum is to set forth the basis for the exemption, its scope, and such terms and conditions as are deemed necessary. Such terms and conditions generally include, but are not limited to, agreements by the applicant to conduct the exempt activity in the manner described to EPA, create and maintain adequate records accessible to EPA at reasonable times, employ labels for the exempt engines setting forth the nature of the exemption, take appropriate measures to assure that the terms of the exemption are met, and advise EPA of the termination of the activity and the ultimate disposition of the engines.

(b) Any exemption granted pursuant to paragraph (a) of this section is deemed to cover any subject engine only to the extent that the specified terms and conditions are complied with. A breach of any term or condition causes the exemption to be void ab initio with respect to any engine. Consequently, the causing or the performing of an act prohibited under §90.1003(a) (1) or (3), other than in strict conformity with all terms and conditions of this exemption, renders the person to whom the exemption is granted, and any other person to whom the provisions of §90.1003 are applicable, liable to suit under sections 204 and 205 of the Act.

Requests for exemption or further information concerning exemptions and/or the exemption request review procedure should be addressed to: Group Manager, Engine Compliance Programs Group, Engine Programs and Compliance Division (6403J), Environmental Protection Agency, Washington, DC 20460.

The provisions for treatment of confidential information described in §90.4 apply to this subpart.

(a) An engine is exempt from the requirements of this part if it is in an engine family that has a valid certificate of conformity showing that it meets emission standards and other requirements under 40 CFR part 1048 for the appropriate model year.

(b) The only requirements or prohibitions from this part that apply to an engine that is exempt under this section are in this section.

(c) If your engines do not have the certificate required in paragraph (a) of this section, they will be subject to the provisions of this part. Introducing these engines into commerce without a valid exemption or certificate of conformity violates the prohibitions in §90.1003.

(d) Engines exempted under this section are subject to all the requirements affecting engines under 40 CFR part 1048. The requirements and restrictions of 40 CFR part 1048 apply to anyone manufacturing these engines, anyone manufacturing equipment that uses these engines, and all other persons in the same manner as if these were nonroad spark-ignition engines above 19 kW.

(e) Engines exempted under this section may not generate or use emission credits under this part 90.

The requirements of subpart K are applicable to all nonroad engines and vehicles subject to the provisions of subpart A of part 90.

The definitions in subpart A of this part apply to this subpart. All terms not defined herein or in subpart A have the meaning given them in the Act.

(1)(i) In the case of a manufacturer of new nonroad engines or vehicles for distribution in commerce, the sale, the offering for sale, or the introduction, or delivery for introduction, into commerce, of any new nonroad engine manufactured after the applicable effective date under this part unless such engine is covered by a certificate of conformity issued (and in effect) under regulations found in this part.

(ii) In the case of any person, except as provided by regulation of the Administrator, the importation into the United States of any new nonroad engine manufactured after the applicable effective date under this part unless such engine is covered by a certificate of conformity issued (and in effect) under regulations found in this part.

(2) (i) For a person to fail or refuse to permit access to or copying of records or to fail to make reports or provide information required under §90.1004.

(ii) For a person to fail or refuse to permit entry, testing or inspection authorized under §§90.126, 90.506, 90.705, 90.1004, or 90.1207.

(iii) For a person to fail or refuse to perform tests or to have tests performed as required under §§90.119, 90.504, 90.703, 90.1004, 90.1204.

(iv) For a person to fail to establish or maintain records as required under §§90.209, 90.704, 90.805, or 90.1004.

(3)(i) For a person to remove or render inoperative a device or element of design installed on or in a nonroad engine in compliance with regulations under this part prior to its sale and delivery to the ultimate purchaser, or for a person knowingly to remove or render inoperative such a device or element of design after the sale and delivery to the ultimate purchaser; or

(ii) For a person to manufacture, sell or offer to sell, or install, a part or component intended for use with, or as part of, a nonroad engine, where a principal effect of the part or component is to bypass, defeat, or render inoperative a device or element of design installed on or in a nonroad engine in compliance with regulations issued under this part, and where the person knows or should know that the part or component is being offered for sale or installed for this use or put to such use.

(4) For a manufacturer of a new nonroad engine subject to standards prescribed under this part:

(i) To sell, offer for sale, or introduce or deliver into commerce, a nonroad engine unless the manufacturer has complied with the requirements of §90.1103.

(ii) To sell, offer for sale, or introduce or deliver into commerce, a nonroad engine unless a label or tag is affixed to the engine in accordance with regulations under this part.

(iv) To provide directly or indirectly in any communication to the ultimate purchaser or a subsequent purchaser that the coverage of a warranty under the Act is conditioned upon use of a part, component, or system manufactured by the manufacturer or a person acting for the manufacturer or under its control, or conditioned upon service performed by such persons, except as provided in subpart L of this part.

(v) To fail or refuse to comply with the terms and conditions of the warranty under subpart L of this part.

(5) For a manufacturer of new nonroad vehicles to distribute in commerce, sell, offer for sale, or introduce into commerce, nonroad vehicles which contain an engine not covered by a certificate of conformity (except as specified in paragraph (b)(4) of this section) or which contain a handheld engine in a nonhandheld vehicle.

(6) For a person to circumvent or attempt to circumvent the residence time requirements of Paragraph (a) (2)(iii) of this Section of the nonroad engine definition in §90.3.

(1) Nothing in paragraph (a) of this section is to be construed to require the use of manufacturer parts in maintaining or repairing a nonroad engine.

(2) Actions for the purpose of repair or replacement of a device or element of design or any other item are not considered prohibited acts under §90.1003(a) if the actions are a necessary and temporary procedure, the device or element is replaced upon completion of the procedure, and the action results in the proper functioning of the device or element of design.

(3) Actions for the purpose of a conversion of a nonroad engine for use of a clean alternative fuel (as defined in Title II of the Act) are not considered prohibited acts under §90.1003(a) if:

(i) The vehicle complies with the applicable standard when operating on the alternative fuel, and the device or element is replaced upon completion of the conversion procedure, and

(ii) In the case of engines converted to dual fuel or flexible use, the action results in proper functioning of the device or element when the nonroad engine operates on conventional fuel.

(4) Certified nonroad engines shall be used in all equipment or vehicles that are self-propelled, portable, transportable, or are intended to be propelled while performing their function, unless the manufacturer of the equipment or vehicle can prove that the vehicle or equipment will be used in a manner consistent with paragraph (2) of the definition of Nonroad engine in §90.3. Nonroad vehicle and equipment manufacturers may continue to use noncertified nonroad engines built prior to the applicable implementation date of the Phase 1 rule until noncertified engine inventories are depleted; further after the applicable implementation of the Phase 2 regulations in this part, nonroad vehicle and equipment manufacturers may continue to use Phase 1 engines until Phase 1 engine inventories are depleted. Stockpiling (i.e., build up of an inventory of uncertified engines or Phase 1 engines beyond normal business practices to avoid or delay compliance with the Phase 1 or Phase 2 regulations in this part, respectively) will be considered a violation of this section.

(5) A new nonroad engine, intended solely to replace an engine in a piece of nonroad equipment that was originally produced with an engine manufactured prior to the applicable implementation date as described in §§90.2, 90.103 and 90.106, or with an engine that was originally produced in a model year in which less stringent standards under this part were in effect, shall not be subject to the requirements of §90.106 or prohibitions and provisions of paragraphs (a)(1) and (b)(4) of this section provided that:

(i) The engine manufacturer has ascertained that no engine produced by itself or the manufacturer of the engine that is being replaced, if different, and certified to the requirements of this subpart, is available with the appropriate physical or performance characteristics to repower the equipment; and

(ii) The engine manufacturer or its agent takes ownership and possession of the old engine in partial exchange for the replacement engine; and

(iii) The replacement engine is clearly labeled with the following language, or similar alternate language approved in advance by the Administrator:

THIS ENGINE DOES NOT COMPLY WITH FEDERAL NONROAD OR ON-HIGHWAY EMISSION REQUIREMENTS. SALE OR INSTALLATION OF THIS ENGINE FOR ANY PURPOSE OTHER THAN AS A REPLACEMENT ENGINE IN A NONROAD VEHICLE OR PIECE OF NONROAD EQUIPMENT WHOSE ORIGINAL ENGINE WAS NOT CERTIFIED, OR WAS CERTIFIED TO LESS STRINGENT EMISSION STANDARDS THAN THOSE THAT APPLY TO THE YEAR OF MANUFACTURE OF THIS ENGINE, IS A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY;

(iv) Where the replacement engine is intended to replace an engine built after the applicable implementation date of regulations under this part, but built to less stringent emission standards than are currently applicable, the replacement engine shall be identical in all material respects to a certified configuration of the same or later model year as the engine being replaced.

(v) In cases where an engine is to be imported for replacement purposes under the provisions of this paragraph (b)(5), the term “engine manufacturer” shall not apply to an individual or other entity that does not possess a current Certificate of Conformity issued by EPA under this part.

(6)(i) Regulations elsewhere in this part notwithstanding, for three model years after the phase-in of each set of Class I through Class V Phase 2 standards; i.e. up to and including August 1, 2010 for Class I engines, up to and including model year 2008 for Class II engines, up to and including model year 2008 for Class III and Class IV engines, and up to and including model year 2010 for Class V engines, small volume equipment manufacturers as defined in this part, may continue to use, and engine manufacturers may continue to supply, engines certified to Phase 1 standards (or identified and labeled by their manufacturer to be identical to engines previously certified under Phase 1 standards), provided the equipment manufacturer has demonstrated to the satisfaction of the Administrator that no certified Phase 2 engine is available with suitable physical or performance characteristics to power a piece of equipment in production prior to the initial effective date of Phase 2 standards, as indicated in §90.103(a). The equipment manufacturer must also certify to the Administrator that the equipment model has not undergone any redesign which could have facilitated conversion of the equipment to accommodate a Phase 2 engine. These provisions do not apply to Class I-A and Class I-B engines.

(ii) Regulations elsewhere in this part notwithstanding, for the duration of the Phase 2 rule in this part, equipment manufacturers that produce small volume equipment models, as defined in this part, for a Class I model in production prior to August 1, 2007, or a Class II model in production prior to the 2001 model year, or a Class III or Class IV model in production prior to the 2002 model year, or a Class V model in production prior to the 2004 model year, may continue to use in that small volume equipment model, and engine manufacturers may continue to supply, engines certified to Phase 1 requirements (or identified and labeled by their manufacturer to be identical to engines previously certified under Phase 1 standards). To be eligible for this provision, the equipment manufacturer must have demonstrated to the satisfaction of the Administrator that no certified Phase 2 engine is available with suitable physical or performance characteristics to power the small volume equipment model. The equipment manufacturer must also certify to the Administrator that the equipment model has not undergone any redesign which could have facilitated conversion of the equipment to accommodate a Phase 2 engine. These provisions do not apply to Class I-A and Class I-B engines.

(iii) An equipment manufacturer which is unable to obtain suitable Phase 2 engines and which can not obtain relief under any other provision of this part, may, prior to the date on which the manufacturer would become in noncompliance with the requirement to use Phase 2 engines, apply to the Administrator to be allowed to continue using Phase 1 engines, through August 1, 2008 for Class I engines, through the 2006 model year for Class II engines, through the 2006 model year for Class III and Class IV engines, and through the 2008 model year for Class V engines, subject to the following criteria (These provisions do not apply to Class I-A and Class I-B engines.):

(A) The inability to obtain Phase 2 engines is despite the manufacturer's best efforts and is the result of an extraordinary action on the part of the engine manufacturer that was outside the control of and could not be reasonably foreseen by the equipment manufacturer; such as canceled production or shipment, last minute certification failure, unforeseen engine cancellation, plant closing, work stoppage or other such circumstance; and

(B) the inability to market the particular equipment will bring substantial economic hardship to the equipment manufacturer resulting in a major impact on the equipment manufacturer's solvency.

(iv) The written permission from the Administrator to the equipment manufacturer shall serve as permission for the engine manufacturer to provide such Phase 1 engines required by the equipment manufacturers under this paragraph (b)(6) of this section. As Phase 1 engines, these engines are exempt from Production Line Testing requirements under subpart H of this part and in-use testing provisions under subpart M of this part, and are excluded from the certification averaging, banking and trading program of subpart C of this part.

(7) Actions for the purpose of installing or removing altitude kits and performing other changes to compensate for altitude change as described in the application for certification pursuant to §90.107(d) and approved at the time of certification pursuant to §90.108(a) are not considered prohibited acts under paragraph (a) of this section.

[60 FR 34598, July 3, 1995, as amended at 62 FR 42644, Aug. 7, 1997; 64 FR 15252, Mar. 30, 1999; 65 FR 24313, Apr. 25, 2000]

(a) Information collection provisions. (1) Every manufacturer of new nonroad engines and other persons subject to the requirements of this part must establish and maintain records, perform tests where such testing is not otherwise reasonably available under this part, make reports and provide information the Administrator may reasonably require to determine whether the manufacturer or other person has acted or is acting in compliance with this part or to otherwise carry out the provisions of this part, and must, upon request of an officer or employee duly designated by the Administrator, permit the officer or employee at reasonable times to have access to and copy such records. The manufacturer shall comply in all respects with the requirements of subpart I of this part.

(2) For purposes of enforcement of this part, an officer or employee duly designated by the Administrator, upon presenting appropriate credentials, is authorized:

(i) To enter, at reasonable times, any establishment of the manufacturer, or of any person whom the manufacturer engaged to perform any activity required under paragraph (a)(1) of this section, for the purposes of inspecting or observing any activity conducted pursuant to paragraph (a)(1) of this section; and

(ii) To inspect records, files, papers, processes, controls, and facilities used in performing an activity required by paragraph (a)(1) of this section, by the manufacturer or by a person whom the manufacturer engaged to perform the activity.

(b) Exemption provision. The Administrator may exempt a new nonroad engine from §90.1003 upon such terms and conditions as the Administrator may find necessary for the purpose of export, research, investigations, studies, demonstrations, or training, or for reasons of national security.

(c) Importation provision. (1) A new nonroad engine or vehicle offered for importation or imported by a person in violation of §90.1003 is to be refused admission into the United States, but the Secretary of the Treasury and the Administrator may, by joint regulation, provide for deferring a final determination as to admission and authorizing the delivery of such a nonroad engine offered for import to the owner or consignee thereof upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to insure that the nonroad engine will be brought into conformity with the standards, requirements, and limitations applicable to it under this part.

(2) If a nonroad engine is finally refused admission under this paragraph, the Secretary of the Treasury shall cause disposition thereof in accordance with the customs laws unless it is exported, under regulations prescribed by the Secretary, within 90 days of the date of notice of the refusal or additional time as may be permitted pursuant to the regulations.

(3) Disposition in accordance with the customs laws may not be made in such manner as may result, directly or indirectly, in the sale, to the ultimate purchaser, of a new nonroad engine that fails to comply with applicable standards of the Administrator under this part.

(d) Export provision. A new nonroad engine intended solely for export, and so labeled or tagged on the outside of the container and on the engine itself, shall be subject to the provisions of §90.1003, except that if the country that is to receive the engine has emission standards that differ from the standards prescribed under subpart B of this part, then the engine must comply with the standards of the country that is to receive the engine.

(a) The district courts of the United States have jurisdiction to restrain violations of §90.1003.

(b) Actions to restrain such violations must be brought by and in the name of the United States. In an action, subpoenas for witnesses who are required to attend a district court in any district may run into any other district.

(a) Violations. A violation of the requirements of this subpart is a violation of the applicable provisions of the Act and is subject to the penalty provisions thereunder.

(1) A person who violates §90.1003(a)(1), (a)(4), or (a)(5), or a manufacturer or dealer who violates §90.1003(a)(3)(i), is subject to a civil penalty of not more than $32,500 for each violation.

(2) A person other than a manufacturer or dealer who violates §90.1003(a)(3)(i) or any person who violates §90.1003(a)(3)(ii) is subject to a civil penalty of not more than $2,750 for each violation.

(3) A violation with respect to §90.1003(a)(1), (a)(3)(i), (a)(4), or (a)(5) constitutes a separate offense with respect to each nonroad engine.

(4) A violation with respect to §90.1003(a)(3)(ii) constitutes a separate offense with respect to each part or component. Each day of a violation with respect to §90.1003(a)(6) constitutes a separate offense.

(5) A person who violates §90.1003(a)(2) or (a)(6) is subject to a civil penalty of not more than $32,500 per day of violation.

(6) The maximum penalty values listed in this section are shown for calendar year 2004. Maximum penalty limits for later years may be adjusted based on the Consumer Price Index. The specific regulatory provisions for changing the maximum penalties, published in 40 CFR part 19, reference the applicable U.S. Code citation on which the prohibited action is based.

(b) Civil actions. The Administrator may commence a civil action to assess and recover any civil penalty under paragraph (a) of this section.

(1) An action under this paragraph may be brought in the district court of the United States for the district in which the violation is alleged to have occurred, the defendant resides, or the Administrator's principal place of business is located, and in which the court has jurisdiction to assess a civil penalty.

(2) In determining the amount of a civil penalty to be assessed under this paragraph, the court is to take into account the gravity of the violation, the economic benefit or savings (if any) resulting from the violation, the size of the violator's business, the violator's history of compliance with Title II of the Act, action taken to remedy the violation, the effect of the penalty on the violator's ability to continue in business, and such other matters as justice may require.

(3) In any such action, subpoenas for witnesses who are required to attend a district court in any district may run into any other district.

(c) Administrative assessment of certain penalties. (1) Administrative penalty authority. In lieu of commencing a civil action under paragraph (b) of this section, the Administrator shall assess any civil penalty prescribed in paragraph (a) of this section, except that the maximum amount of penalty sought against each violator in a penalty assessment proceeding can not exceed $270,000, unless the Administrator and the Attorney General jointly determine that a matter involving a larger penalty amount is appropriate for administrative penalty assessment. Any such determination by the Administrator and the Attorney General is not subject to judicial review. Assessment of a civil penalty is made by an order made on the record after opportunity for a hearing held in accordance with the procedures found at part 22 of this chapter. The Administrator may compromise, or remit, with or without conditions, any administrative penalty which may be imposed under this section.

(2) Determining amount. In determining the amount of any civil penalty assessed under this subsection, the Administrator is to take into account the gravity of the violation, the economic benefit or savings (if any) resulting from the violation, the size of the violator's business, the violator's history of compliance with Title II of the Act, action taken to remedy the violation, the effect of the penalty on the violator's ability to continue in business, and such other matters as justice may require.

(3) Effect of administrator's action. (i) Action by the Administrator under this paragraph does not affect or limit the Administrator's authority to enforce any provisions of this part; except that any violation with respect to which the Administrator has commenced and is diligently prosecuting an action under this part, or for which the Administrator has issued a final order not subject to further judicial review and for which the violator has paid a penalty assessment under this part may not be the subject of a civil penalty action under paragraph (b) of this section.

(ii) No action by the Administrator under this part affects a person's obligation to comply with a section of this part.

(4) Finality of order. An order issued under this part becomes final 30 days after its issuance unless a petition for judicial review is filed under paragraph (c)(5) of this section.

(5) Judicial review. (i) A person against whom a civil penalty is assessed in accordance with this part may seek review of the assessment in the United States District Court for the District of Columbia or for the district in which the violation is alleged to have occurred, in which such person resides, or where the person's principle place of business is located, within the 30-day period beginning on the date a civil penalty order is issued. The person must simultaneously send a copy of the filing by certified mail to the Administrator and the Attorney General.

(ii) The Administrator must file in the court within 30 days a certified copy, or certified index, as appropriate, of the record on which the order was issued. The court is not to set aside or remand any order issued in accordance with the requirements of this paragraph unless substantial evidence does not exist in the record, taken as a whole, to support the finding of a violation or unless the Administrator's assessment of the penalty constitutes an abuse of discretion, and the court is not to impose additional civil penalties unless the Administrator's assessment of the penalty constitutes an abuse of discretion. In any proceedings, the United States may seek to recover civil penalties assessed under this section.

(6) Collection. (i) If any person fails to pay an assessment of a civil penalty imposed by the Administrator as provided in this part after the order making the assessment has become final or after a court in an action brought under paragraph (c)(5) of this section has entered a final judgment in favor of the Administrator, the Administrator is to request that the Attorney General bring a civil action in an appropriate district court to recover the amount assessed (plus interest at rates established pursuant to section 6621(a)(2) of the Internal Revenue Code of 1986 from the date of the final order or the date of final judgment, as the case may be). In such an action, the validity, amount, and appropriateness of the penalty are not subject to review.

(ii) A person who fails to pay on a timely basis the amount of an assessment of a civil penalty as described in paragraph (c)(6)(i) of this section is required to pay, in addition to that amount and interest, the United States' enforcement expenses, including attorney's fees and costs for collection proceedings, and a quarterly nonpayment penalty for each quarter during which the failure to pay persists. The nonpayment penalty is an amount equal to 10 percent of the aggregate amount of that person's penalties and nonpayment penalties which are unpaid as of the beginning of such quarter.

The requirements of subpart L are applicable to all nonroad engines and vehicles subject to the provisions of subpart A of part 90.

(a) Warranties imposed by this subpart shall be for the first two years of engine use from the date of sale to the ultimate purchaser. Manufacturers of handheld engines subject to Phase 2 standards may apply to the Administrator for approval for a warranty period of less than two years for handheld engines that are subject to severe service in seasonal equipment and are likely to run their full useful life hours in less than two years. Such an application must be made prior to certification. Alternatively, manufacturers of handheld engines subject to Phase 2 standards may apply to the Administrator for approval for a warranty period equal to the useful life of the engine or two years, whichever is less, if the equipment in which the engine is placed is equipped with a meter for measuring hours of use. Such an application must be made prior to certification.

(b) The manufacturer of each new nonroad engine must warrant to the ultimate purchaser and each subsequent purchaser that the engine is designed, built and equipped so as to conform at the time of sale with applicable regulations under section 213 of the Act, and the engine is free from defects in materials and workmanship which cause such engine to fail to conform with applicable regulations for its warranty period.

(c) In the case of a nonroad engine part, the manufacturer or rebuilder of the part may certify according to §85.2112 of this chapter that use of the part will not result in a failure of the engine to comply with emission standards promulgated in this part.

(d) For the purposes of this section, the owner of any nonroad engine warranted under this part is responsible for the proper maintenance of the engine as stated in the manufacturer's written instructions. Proper maintenance generally includes replacement and service, at the owner's expense at a service establishment or facility of the owner's choosing, such items as spark plugs, points, condensers, and any other part, item, or device related to emission control (but not designed for emission control) under the terms of the last sentence of section 207(a)(3) of the Act, unless such part, item, or device is covered by any warranty not mandated by this Act.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15253, Mar. 30, 1999; 65 FR 24314, Apr. 25, 2000]

(a) The manufacturer must furnish or cause to be furnished to the ultimate purchaser of each new nonroad engine written instructions for the maintenance needed to assure proper functioning of the emission control system.

(b) The manufacturer must provide in boldface type on the first page of the written maintenance instructions notice that maintenance, replacement, or repair of the emission control devices and systems may be performed by any nonroad engine repair establishment or individual.

(c) The instructions under paragraph (b) of this section will not include any condition on the ultimate purchaser's using, in connection with such engine, any component or service (other than a component or service provided without charge under the terms of the purchase agreement) which is identified by brand, trade, or corporate name. Such instructions also will not directly or indirectly distinguish between service performed by the franchised dealers of such manufacturer or any other service establishments with which such manufacturer has a commercial relationship and service performed by independent nonroad engine repair facilities with which such manufacturer has no commercial relationship.

(d) The prohibition of paragraph (c) of this section may be waived by the Administrator if:

(1) The manufacturer satisfies the Administrator that the engine will function properly only if the component or service so identified is used in connection with such engine; and

(e) If a manufacturer includes in an advertisement a statement respecting the cost or value of emission control devices or systems, the manufacturer shall set forth in the statement the cost or value attributed to these devices or systems by the Secretary of Labor (through the Bureau of Labor Statistics). The Secretary of Labor, and his or her representatives, has the same access for this purpose to the books, documents, papers, and records of a manufacturer as the Comptroller General has to those of a recipient of assistance for purposes of section 311 of the Act.

§ 90.1201 Applicability.

The provisions of this subpart from §90.1201 through §90.1249 are applicable to all handheld and nonhandheld Phase 2 engines subject to the provisions of subpart A of this part.

For the purposes of this subpart, except as otherwise provided, the definitions in subparts A and C of this part apply to this subpart.

(a) Manufacturers may elect to participate in the voluntary in-use testing program by notifying the Administrator in writing of their intent to conduct emissions testing on in-use engines prior to the beginning of each model year. The notification must include a list of engine families the manufacturer has selected to include in the testing program.

(b) Each engine family included in the voluntary in-use testing program is exempted from the Production Line Testing requirements according to §90.701(c) for two model years, the current model year and the subsequent model year. Manufacturers may only include up to twenty percent of their eligible engine families in this in-use testing program each model year.

(c) The manufacturer must randomly select or procure a minimum of three engines, from each family included in the voluntary program, for emissions testing. These three engines may be selected or procured from:

(3) The production line and placed into either manufacturer or consumer owned fleets. Although a minimum of three engines must be emissions tested from each engine family in this testing program, a manufacturer may elect to emissions test more than three engines per family.

(1) Age the selected engines in equipment representing the top 50 percent, by production, of available equipment for the engine family.

(2) Age the selected engines to at least 75 percent of each engines' useful life as determined pursuant to §90.105.

(3) Age the engine/equipment combination in actual field conditions encountered with typical use of the equipment as described in the owner's manual or other literature sold with the equipment or engine.

(e) Documents obtained in the procurement or aging process must be maintained as required in §90.121.

(f) The manufacturer must complete testing within three calendar years from the time they notified the Administrator of their intent to participate in the voluntary in-use testing program, unless otherwise approved by the Administrator; the Administrator will give such approval upon acceptance of documentation demonstrating that appropriate in-use testing will take a longer period of time.

(a) Prior to aging the engines and after appropriate stabilization, manufacturers may optionally conduct emissions testing on the engines, according to the test procedures described in subpart E of this part. These tests to serve as baseline references.

(b) Manufacturers must obtain information regarding the accumulated usage, maintenance, operating conditions, and storage of the test engines.

(1) The manufacturer may take reasonable measures to assure that the engines and equipment were properly used and maintained during the field aging process, but additional maintenance to that indicated in the owners manual or other literature sold with the equipment or engine is prohibited.

(2) Unless otherwise approved by the Administrator, once a manufacturer begins aging and/or testing an engine, the manufacturer may not remove that engine from the selected sample unless that engine experiences catastrophic mechanical failure or safety concerns requiring major engine repair.

(c) The manufacturer may perform minimal set-to-spec maintenance on components of a test engine that are not subject to parameter adjustment. Components subject to parameter adjustment must be sealed and tamperproof and may not be adjusted for testing. Unless otherwise approved by the Administrator, maintenance to any test engine may include only that which is listed in the owner's instructions for engines with the amount of service and age of the test engine.

(d) After aging each engine to at least 75 percent of the engine's useful life as determined pursuant to §90.105, at least one valid emission test, according to the test procedure outlined in subpart E of this part, is required for each test engine. Data from other emission testing or performance testing performed on a test engine must be supplied to EPA, and may not be used for the purpose of determining the need for maintenance on an engine.

(e) Documents obtained in the procurement, aging, maintenance, or testing process must be maintained as required in §90.121.

(a) The manufacturer shall submit to the Administrator within ninety (90) days of completion of testing for a given model year's engines, all emission testing results generated from the voluntary in-use testing program. The following information must be reported for each test engine:

(9) Schedules, descriptions and justifications of all maintenance and/or adjustments performed;

(10) Schedules, descriptions and justifications of all modifications and/or repairs; and

(11) A listing of any test engines that were deleted from the aging process or testing process and technical justifications to support the deletion.

(b) All testing reports and requests for approvals made under this subpart shall be addressed to: Manager, Engine Compliance Programs Group (6403–J), U.S. Environmental Protection Agency, Washington, DC 20460.

(a) To allow the Administrator to determine whether a manufacturer is complying with the provisions under this subpart, EPA enforcement officers or their authorized representatives, upon presentation of credentials, shall be permitted entry, during operating hours, into any of the following places:

(1) Any facility where engines undergo or are undergoing aging, maintenance, repair, preparation for aging, selection for aging or emission testing.

(2) Any facility where records or documents related to any of activities described in paragraph (a)(1) of this section are kept.

(3) Any facility where any engine that is being tested or aged, was tested or aged or will be tested or aged is present.

(b) Upon admission to any facility referred to in paragraph (a) of this section, EPA enforcement officers or EPA authorized representatives are authorized to perform those activities set forth in §90.705 (b) and also to inspect and make copies of records related to engine aging (service accumulation) and maintenance.

PART 90—CONTROL OF EMISSIONS FROM NONROAD SPARK-IGNITION ENGINES AT OR BELOW 19 KILOWATTS

Subpart A—General

§ 90.1 Applicability.

§ 90.2 Effective dates.

§ 90.3 Definitions.

§ 90.4 Treatment of confidential information.

§ 90.5 Acronyms and abbreviations.

§ 90.6 Table and figure numbering; position.

§ 90.7 Reference materials.

Subpart B—Emission Standards and Certification Provisions

§ 90.101 Applicability.

§ 90.102 Definitions.

§ 90.103 Exhaust emission standards.

§ 90.104 Compliance with emission standards.

§ 90.105 Useful life periods for Phase 2 engines.

§ 90.106 Certificate of conformity.

§ 90.107 Application for certification.

§ 90.108 Certification.

§ 90.109 Requirement of certification—closed crankcase.

§ 90.110 Requirement of certification—prohibited controls.

§ 90.111 Requirement of certification—prohibition of defeat devices.

§ 90.112 Requirement of certification—adjustable parameters.

§ 90.113 In-use testing program for Phase 1 engines.

§ 90.114 Requirement of certification—engine information label.

§ 90.115 Requirement of certification—supplying production engines upon request.

§ 90.116 Certification procedure—determining engine displacement, engine class, and engine families.

§ 90.117 Certification procedure—test engine selection.

§ 90.118 Certification procedure—service accumulation and usage of deterioration factors.

§ 90.119 Certification procedure—testing.

§ 90.120 Certification procedure—use of special test procedures.

§ 90.121 Certification procedure—recordkeeping.

§ 90.122 Amending the application and certificate of conformity.

§ 90.123 Denial, revocation of certificate of conformity.

§ 90.124 Request for hearing.

§ 90.125 Hearing procedures.

§ 90.126 Right of entry and access.

§ 90.127 xxx

§ 90.128 xxx

§ 90.129 xxx

Subpart C—Certification Averaging, Banking, and Trading Provisions

§ 90.201 Applicability.

§ 90.202 Definitions.

§ 90.203 General provisions.

§ 90.204 Averaging.

§ 90.205 Banking.

§ 90.206 Trading.

§ 90.207 Credit calculation and manufacturer compliance with emission standards.

§ 90.208 Certification.

§ 90.209 Maintenance of records.

§ 90.210 End-of-year and final reports.

§ 90.211 Request for hearing.

Subpart D—Emission Test Equipment Provisions

§ 90.301 Applicability.

§ 90.302 Definitions.

§ 90.303 Symbols, acronyms, abbreviations.

§ 90.304 Test equipment overview.

§ 90.305 Dynamometer specifications and calibration accuracy.

§ 90.306 Dynamometer torque cell calibration.

§ 90.307 Engine cooling system.

§ 90.308 Lubricating oil and test fuels.

§ 90.309 Engine intake air temperature measurement.

§ 90.310 Engine intake air humidity measurement.

§ 90.311 Test conditions.

§ 90.312 Analytical gases.

§ 90.313 Analyzers required.

§ 90.314 Analyzer accuracy and specifications.

§ 90.315 Analyzer initial calibration.

§ 90.316 Hydrocarbon analyzer calibration.

§ 90.317 Carbon monoxide analyzer calibration.

§ 90.318 Oxides of nitrogen analyzer calibration.

§ 90.319 NOXconverter check.

§ 90.320 Carbon dioxide analyzer calibration.

§ 90.321 NDIR analyzer calibration.

§ 90.322 Calibration of other equipment.

§ 90.323 Analyzer bench checks.

§ 90.324 Analyzer leakage check.

§ 90.325 Analyzer interference checks.

§ 90.326 Pre- and post-test analyzer calibration.

§ 90.327 Sampling system requirements.

§ 90.328 Measurement equipment accuracy/calibration frequency table.