[Code of Federal Regulations]
[Title 40, Volume 31]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR1039.625]

[Page 516-521]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 1039_CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD 
COMPRESSION-IGNITION ENGINES--Table of Contents
 
                 Subpart G_Special Compliance Provisions
 
Sec.  1039.625  What requirements apply under the program for 
equipment-manufacturer flexibility?

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

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

    (2) If you do not use any allowances in a power category before the 
earliest dates shown in the following table, you may delay the start of 
the seven-year

[[Page 517]]

period for using allowances under this section as follows:

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

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

[[Page 518]]

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

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

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

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

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

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

    (g) Notification and reporting. You must notify us of your intent to 
use the provisions of this section and send us an annual report to 
verify that you are not exceeding the allowances, as follows:
    (1) Before January 1 of the first year you intend to use the 
provisions of this section, send the Designated Compliance Officer and 
the Designated Enforcement Officer a written notice of your intent, 
including:

[[Page 519]]

    (i) Your company's name and address, and your parent company's name 
and address, if applicable.
    (ii) Whom to contact for more information.
    (iii) The calendar years in which you expect to use the exemption 
provisions of this section.
    (iv) The name and address of the company that produces the engines 
you will be using for the equipment exempted under this section.
    (v) Your best estimate of the number of units in each power category 
you will produce under this section and whether you intend to comply 
under paragraph (b)(1) or (b)(2) of this section.
    (vi) The number of units in each power category you have sold in 
previous calendar years under 40 CFR 89.102(d).
    (2) For each year that you use the provisions of this section, send 
the Designated Compliance Officer and the Designated Enforcement Officer 
a written report by March 31 of the following year. Include in your 
report the total number of engines you sold in the preceding year for 
each power category, based on actual U.S.-directed production 
information. Also identify the percentages of U.S.-directed production 
that correspond to the number of units in each power category and the 
cumulative numbers and percentages of units for all the units you have 
sold under this section for each power category. You may omit the 
percentage figures if you include in the report a statement that you 
will not be using the percent-of-production allowances in paragraph 
(b)(1) of this section.
    (h) Recordkeeping. Keep the following records of all equipment with 
exempted engines you produce under this section for at least five full 
years after the final year in which allowances are available for each 
power category:
    (1) The model number, serial number, and the date of manufacture for 
each engine and piece of equipment.
    (2) The maximum power of each engine.
    (3) The total number or percentage of equipment with exempted 
engines, as described in paragraph (b) of this section and all 
documentation supporting your calculation.
    (4) The notifications and reports we require under paragraph (g) of 
this section.
    (i) Enforcement. Producing more exempted engines or equipment than 
we allow under this section or installing engines that do not meet the 
emission standards of paragraph (e) of this section violates the 
prohibitions in 40 CFR 1068.101(a)(1). You must give us the records we 
require under this section if we ask for them (see 40 CFR 
1068.101(a)(2)).
    (j) Provisions for engine manufacturers. As an engine manufacturer, 
you may produce exempted engines as needed under this section. You do 
not have to request this exemption for your engines, but you must have 
written assurance from equipment manufacturers that they need a certain 
number of exempted engines under this section. Send us an annual report 
of the engines you produce under this section, as described in Sec.  
1039.250(a). For engines produced under the provisions of paragraph 
(a)(2) of this section, you must certify the engines under this part 
1039. For all other exempt engines, the engines must meet the emission 
standards in paragraph (e) of this section and you must meet all the 
requirements of 40 CFR 1068.265. If you show under 40 CFR 1068.265(c) 
that the engines are identical in all material respects to engines that 
you have previously certified to one or more FELs above the standards 
specified in paragraph (e) of this section, you must supply sufficient 
credits for these engines. Calculate these credits under subpart H of 
this part using the previously certified FELs and the alternate 
standards. You must meet the labeling requirements in 40 CFR 89.110, but 
add the following statement instead of the compliance statement in 40 
CFR 89.110(b)(10):

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


[[Page 520]]


    (k) Other exemptions. See 40 CFR 1068.255 for exemptions based on 
hardship for equipment manufacturers and secondary engine manufacturers.
    (l) [Reserved]
    (m) Additional exemptions for technical or engineering hardship. You 
may request additional engine allowances under paragraph (b)(1) of this 
section for 19-560 kW power categories or, if you are a small equipment 
manufacturer, under paragraph (b)(2) of this section for engines at or 
above 19 and below 37 kW. However, you may use these extra allowances 
only for those equipment models for which you, or an affiliated company, 
do not also produce the engine. After considering the circumstances, we 
may permit you to introduce into commerce equipment with such engines 
that do not comply with Tier 4 emission standards, as follows:
    (1) We may approve additional exemptions if extreme and unusual 
circumstances that are clearly outside your control and that could not 
have been avoided with reasonable discretion have resulted in technical 
or engineering problems that prevent you from meeting the requirements 
of this part. You must show that you exercised prudent planning and have 
taken all reasonable steps to minimize the scope of your request for 
additional allowances.
    (2) To apply for exemptions under this paragraph (m), send the 
Designated Compliance Officer and the Designated Enforcement Officer a 
written request as soon as possible before you are in violation. In your 
request, include the following information:
    (i) Describe your process for designing equipment.
    (ii) Describe how you normally work cooperatively or concurrently 
with your engine supplier to design products.
    (iii) Describe the engineering or technical problems causing you to 
request the exemption and explain why you have not been able to solve 
them. Describe the extreme and unusual circumstances that led to these 
problems and explain how they were unavoidable.
    (iv) Describe any information or products you received from your 
engine supplier related to equipment design--such as written 
specifications, performance data, or prototype engines--and when you 
received it.
    (v) Compare the design processes of the equipment model for which 
you need additional exemptions and that for other models for which you 
do not need additional exemptions. Explain the technical differences 
that justify your request.
    (vi) Describe your efforts to find and use other compliant engines, 
or otherwise explain why none is available.
    (vii) Describe the steps you have taken to minimize the scope of 
your request.
    (viii) Include other relevant information. You must give us other 
relevant information if we ask for it.
    (ix) Estimate the increased percent of production you need for each 
equipment model covered by your request, as described in paragraph 
(m)(3) of this section. Estimate the increased number of allowances you 
need for each equipment model covered by your request, as described in 
paragraph (m)(4) of this section.
    (3) We may approve your request to increase the allowances under 
paragraph (b)(1) of this section, subject to the following limitations:
    (i) The additional allowances will not exceed 70 percent for each 
power category.
    (ii) You must use up the allowances under paragraph (b)(1) of this 
section before using any additional allowance under this paragraph (m).
    (iii) Any allowances we approve under this paragraph (m)(3) expire 
24 months after the provisions of this section start for a given power 
category, as described in paragraph (a) of this section. You may use 
these allowances only for the specific equipment models covered by your 
request.
    (4) We may approve your request to increase the allowances for the 
19-56 kW power category under paragraph (b)(2) of this section, subject 
to the following limitations:
    (i) You are eligible for additional allowances under this paragraph 
(m)(4) only if you are a small equipment manufacturer and you do not use 
the provisions of paragraph (m)(3) of this section to obtain additional 
allowances for the 19-56 kW power category.

[[Page 521]]

    (ii) You must use up all the available allowances for the 19-56 kW 
power category under paragraph (b)(2) of this section in a given year 
before using any additional allowances under this paragraph (m)(4).
    (iii) Base your request only on equipment you produce with engines 
at or above 19 kW and below 37 kW. You may use any additional allowances 
only for equipment you produce with engines at or above 19 kW and below 
37 kW.
    (iv) The total allowances under either paragraph (b)(2)(i) or (ii) 
of this section for the 19-56 kW power category will not exceed 1,100 
units.
    (v) Any allowances we approve under this paragraph (m)(4) expire 36 
months after the provisions of this section start for this power 
category, as described in paragraph (a) of this section. These 
additional allowances are not subject to the annual limits specified in 
paragraph (b)(2) of this section. You may use these allowances only for 
the specific equipment models covered by your request.
    (5) For purposes of this paragraph (m), small equipment manufacturer 
means a small-business equipment manufacturer that had annual U.S.-
directed production volume of equipment using nonroad diesel engines 
between 19 and 56 kW of no more than 3,000 units in 2002 and all earlier 
calendar years, and has 750 or fewer employees (500 or fewer employees 
for nonroad equipment manufacturers that produce no construction 
equipment or industrial trucks). For manufacturers owned by a parent 
company, the production limit applies to the production of the parent 
company and all its subsidiaries and the employee limit applies to the 
total number of employees of the parent company and all its 
subsidiaries.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40464, July 13, 2005]