[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2011 Edition]
[From the U.S. Government Printing Office]



[[Page 1]]

          

          Title 40

Protection of Environment


________________________

Part 1000 to End

                         Revised as of July 1, 2011

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2011
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 40:
          Chapter I--Environmental Protection Agency 
          (Continued)                                                3
          Chapter IV--Environmental Protection Agency and 
          Department of Justice                                    825
          Chapter V--Council on Environmental Quality              833
          Chapter VI--Chemical Safety and Hazard Investigation 
          Board                                                    881
          Chapter VII--Environmental Protection Agency and 
          Department of Defense; Uniform National Discharge 
          Standards for Vessels of the Armed Forces                917
  Finding Aids:
      Table of CFR Titles and Chapters........................     929
      Alphabetical List of Agencies Appearing in the CFR......     949
      List of CFR Sections Affected...........................     959

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 40 CFR 1027.101 
                       refers to title 40, part 
                       1027, section 101.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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issues of the Federal Register. These two publications must be used 
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    To determine whether a Code volume has been amended since its 
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EFFECTIVE AND EXPIRATION DATES

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inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
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OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
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``[RESERVED]'' TERMINOLOGY

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Federal Regulations. An agency may add regulatory information at a 
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INCORPORATION BY REFERENCE

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This material, like any other properly issued regulation, has the force 
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    What is a proper incorporation by reference? The Director of the 
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    An index to the text of ``Title 3--The President'' is carried within 
that volume.

[[Page vii]]

    The Federal Register Index is issued monthly in cumulative form. 
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the revision dates of the 50 CFR titles.

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    Director,
    Office of the Federal Register.
    July 1, 2011.







[[Page ix]]



                               THIS TITLE

    Title 40--Protection of Environment is composed of thirty-three 
volumes. The parts in these volumes are arranged in the following order: 
Parts 1-49, parts 50-51, part 52 (52.01-52.1018), part 52 (52.1019-end 
of part 52), parts 53-59, part 60 (60.1-end of part 60, sections), part 
60 (Appendices), parts 61-62, part 63 (63.1-63.599), part 63 (63.600-
63.1199), part 63 (63.1200-63.1439), part 63 (63.1440-63.6175), part 63 
(63.6580-63.8830), part 63 (63.8980-end of part 63) parts 64-71, parts 
72-80, parts 81-84, part 85-Sec.  86.599-99, part 86 (86.600-1-end of 
part 86), parts 87-95, parts 96-99, parts 100-135, parts 136-149, parts 
150-189, parts 190-259, parts 260-265, parts 266-299, parts 300-399, 
parts 400-424, parts 425-699, parts 700-789, parts 790-999, and part 
1000 to end. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of July 1, 2011.

    Chapter I--Environmental Protection Agency appears in all thirty-
three volumes. Regulations issued by the Council on Environmental 
Quality, including an Index to Parts 1500 through 1508, appear in the 
volume containing part 1000 to end. The OMB control numbers for title 40 
appear in Sec.  9.1 of this chapter.

    For this volume, Michele Bugenhagen was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.

[[Page 1]]



                   TITLE 40--PROTECTION OF ENVIRONMENT




                  (This book contains part 1000 to End)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Environmental Protection Agency (Continued)......        1027

chapter iv--Environmental Protection Agency and Department 
  of Justice................................................        1400

chapter v--Council on Environmental Quality.................        1500

chapter vi--Chemical Safety and Hazard Investigation Board..        1600

chapter vii--Environmental Protection Agency and Department 
  of Defense; Uniform National Discharge Standards for 
  Vessels of the Armed Forces...............................        1700

[[Page 3]]



         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)




  --------------------------------------------------------------------


  Editorial Note: Nomenclature changes to chapter I appear at 65 FR 
47324, 47325, Aug. 2, 2000, and 66 FR 34375, 34376, June 28, 2001.

                  SUBCHAPTER U--AIR POLLUTION CONTROLS
Part                                                                Page
1027            Fees for engine, vehicle, and equipment 
                    compliance programs.....................           4
1033            Control of emissions from locomotives.......          11
1039            Control of emissions from new and in-use 
                    nonroad compression-ignition engines....          90
1042            Control of emissions from new and in-use 
                    marine compression-ignition engines and 
                    vessels.................................         168
1043            Control of NOX, SOX, and PM emissions from 
                    engines and vessels subject to the 
                    MARPOL protocol.........................         254
1045            Control of emissions from spark-ignition 
                    propulsion marine engines and vessels...         264
1048            Control of emissions from new, large nonroad 
                    spark-ignition engines..................         329
1051            Control of emissions from recreational 
                    engines and vehicles....................         388
1054            Control of emissions from new, small nonroad 
                    spark-ignition engines and equipment....         453
1060            Control of evaporative emissions from new 
                    and in-use nonroad and stationary 
                    equipment...............................         522
1065            Engine-testing procedures...................         563
1068            General compliance provisions for engine 
                    programs................................         757
1074            Preemption of state standards and procedures 
                    for waiver of federal preemption for 
                    nonroad engines and nonroad vehicles....         821

[[Page 4]]



                   SUBCHAPTER U_AIR POLLUTION CONTROLS


PART 1027_FEES FOR ENGINE, VEHICLE, AND EQUIPMENT COMPLIANCE PROGRAMS--Table of Contents



Sec.
1027.101 To whom do these requirements apply?
1027.105 How much are the fees?
1027.110 What special provisions apply for certification related to 
          motor vehicles?
1027.115 What special provisions apply for certification related to 
          nonroad and stationary engines?
1027.120 Can I qualify for reduced fees?
1027.125 Can I get a refund?
1027.130 How do I make a fee payment?
1027.135 What provisions apply to a deficient filing?
1027.140 What reporting and recordkeeping requirements apply under this 
          part?
1027.150 What definitions apply to this part?
1027.155 What abbreviations apply to this subpart?

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

    Source: 73 FR 59184, Oct. 8, 2008, unless otherwise noted.



Sec. 1027.101  To whom do these requirements apply?

    (a) This part prescribes fees manufacturers must pay for activities 
related to EPA's engine, vehicle, and equipment compliance program 
(EVECP). This includes activities related to approving certificates of 
conformity and performing tests and taking other steps to verify 
compliance with emission standards. You must pay fees as described in 
this part if you are a manufacturer of any of the following products:
    (1) Motor vehicles and motor vehicle engines we regulate under 40 
CFR part 86. This includes light-duty vehicles, light-duty trucks, 
medium-duty passenger vehicles, highway motorcycles, and heavy-duty 
highway engines and vehicles.
    (2) The following nonroad engines and equipment:
    (i) Locomotives and locomotive engines we regulate under 40 CFR part 
92 or 1033.
    (ii) Nonroad compression-ignition engines we regulate under 40 CFR 
part 89 or 1039.
    (iii) Marine compression-ignition engines we regulate under 40 CFR 
part 94, 1042, or 1043.
    (iv) Marine spark-ignition engines and vessels we regulate under 40 
CFR part 91, 1045, or 1060. We refer to these as Marine SI engines.
    (v) Nonroad spark-ignition engines above 19 kW we regulate under 40 
CFR part 1048. We refer to these as Large SI engines.
    (vi) Recreational vehicles we regulate under 40 CFR part 1051.
    (vii) Nonroad spark-ignition engines and equipment at or below 19 kW 
we regulate under 40 CFR part 90, 1054, or 1060. We refer to these as 
Small SI engines.
    (3) The following stationary internal combustion engines:
    (i) Stationary compression-ignition engines we certify under 40 CFR 
part 60, subpart IIII.
    (ii) Stationary spark-ignition engines we certify under 40 CFR part 
60, subpart JJJJ.
    (4) Portable fuel containers we regulate under 40 CFR part 59, 
subpart F.
    (b) This part applies to applications for certification that we 
receive on or after December 8, 2008. Earlier applications are subject 
to the provisions of 40 CFR part 85, subpart Y, as that provision read 
before December 8, 2008.
    (c) Nothing in this part limits our authority to conduct testing or 
to require you to conduct testing as provided in the Act, including our 
authority to require you to conduct in-use testing under section 208 of 
the Act (42 U.S.C. 7542).
    (d) Paragraph (a) of this section identifies the parts of the CFR 
that define emission standards and other requirements for particular 
types of engines, vehicles, and fuel-system components. This part 1027 
refers to each of these other parts generically as the ``standard-
setting part.'' For example, 40 CFR part 1051 is always the standard-
setting part for recreational vehicles. For some nonroad engines, we 
allow for certification related to evaporative emissions separate from 
exhaust emissions. In this case, 40 CFR part 1060 is

[[Page 5]]

the standard-setting part for the equipment or fuel system components 
you produce.

[73 FR 59184, Oct. 8, 2008, as amended at 75 FR 22981, Apr. 30, 2010]



Sec. 1027.105  How much are the fees?

    (a) Fees are determined based on the date we receive a complete 
application for certification. Each reference to a year in this subpart 
refers to the calendar year, unless otherwise specified. Paragraph (b) 
of this section specifies baseline fees, which applied for certificates 
received in 2005. For engine and vehicles not yet subject to standards 
in 2005, these values represent the fees that apply initially based on 
available information to characterize what the fees would have been in 
2005. See paragraph (c) of this section for provisions describing how we 
calculate fees for future years.
    (b) The following baseline fees for each application for 
certification:
    (1) Except as specified in paragraph (b)(2) of this section for 
Independent Commercial Importers, the following fees apply for motor 
vehicles and motor vehicle engines:

------------------------------------------------------------------------
             Category                 Certificate type          Fee
------------------------------------------------------------------------
(i) Light-duty vehicles and trucks  Federal.............         $33,883
(ii) Light-duty vehicles and        California-only.....          16,944
 trucks.
(iii) Medium-duty passenger         Federal.............          33,883
 vehicles.
(iv) Medium-duty passenger          California-only.....          16,944
 vehicles.
(v) Highway motorcycle............  All.................           2,414
(vi) Heavy-duty highway engine....  Federal.............          21,578
(vii) Heavy-duty highway engine...  California-only.....             826
(viii) Complete heavy-duty highway  Federal.............          33,883
 vehicles.
(ix) Complete heavy-duty highway    California-only.....          16,944
 vehicles.
(x) Heavy-duty vehicle............  Evap................             826
------------------------------------------------------------------------

    (2) A fee of $8,387 applies for Independent Commercial Importers 
with respect to the following motor vehicles:
    (i) Light-duty vehicles and light-duty trucks.
    (ii) Medium-duty passenger vehicles.
    (iii) Complete heavy-duty highway vehicles.
    (3) The following fees apply for nonroad and stationary engines, 
vehicles, equipment, and components:

------------------------------------------------------------------------
             Category                 Certificate type          Fee
------------------------------------------------------------------------
(i) Locomotives and locomotive      All.................            $826
 engines.
(ii) Marine compression-ignition    All, including EIAPP             826
 engines and stationary
 compression-ignition engines with
 per-cylinder displacement at or
 above 10 liters.
(iii) Other nonroad compression-    All.................           1,822
 ignition engines and stationary
 compression-ignition engines with
 per-cylinder displacement below
 10 liters.
(iv) Large SI engines.............  All.................             826
(v) Stationary spark-ignition       All.................             826
 engines above 19 kW.
(vi) Marine SI engines and Small    Exhaust only........             826
 SI engines.
(vii) Stationary spark-ignition     Exhaust only........             826
 engines at or below 19 kW.
(viii) Recreational vehicles......  Exhaust (or combined             826
                                     exhaust and evap).
(ix) Equipment and fuel-system      Evap (where separate             241
 components associated with          certification is
 nonroad and stationary spark-       required).
 ignition engines, including
 portable fuel containers.
------------------------------------------------------------------------

    (c) We will calculate adjusted fees for later years based on changes 
in the Consumer Price Index and the number of certificates. We will 
announce adjusted fees for a given year by January 31 of the preceding 
year.
    (1) We will adjust the values specified in paragraph (b) of this 
section for later years as follows:
    (i) Use the fee identified in Sec. 1027.105(b)(3) through 2014 for 
certification related to evaporative emissions from nonroad and 
stationary engines when a separate fee applies for certification to 
evaporative emission standards. Use the following equation starting with 
2015:

[[Page 6]]

[GRAPHIC] [TIFF OMITTED] TR24FE09.003

Where:

Certificate FeeCY = Fee per certificate for a given year.
Op = operating costs are all of EPA's nonlabor costs for each category's 
compliance program, including any fixed costs associated with EPA's 
testing laboratory, as described in paragraph (d)(1) of this section.
L = the labor costs, to be adjusted by the Consumer Price Index, as 
described in paragraph (d)(1) of this section.
CPICY-2 = the Consumer Price Index for the month of November 
two years before the applicable calendar year, as described in paragraph 
(d)(2) of this section.
CPI2006 = 201.8. This is based on the October 2006 value of 
the Consumer Price Index.
OH = 1.169. This is based on EPA overhead, which is applied to all 
costs.
certMY-2 = the total number of certificates issued 
for a fee category in the model year two years before the calendar year 
for the applicable fees as described in paragraph (d)(3) of this 
section.
certMY-3 = the total number of certificates issued 
for a fee category in the model year three years before the calendar 
year for the applicable fees as described in paragraph (d)(3) of this 
section.

    (ii) Use the following equation for all other certificates for 2006 
and later:
[GRAPHIC] [TIFF OMITTED] TR24FE09.004

Where:

CPI2002 = 180.9. This is based on the December 2002 value of 
the Consumer Price Index as described in paragraph (d)(2) of this 
section.

    (2) The fee for any year will remain at the previous year's amount 
until the value calculated in paragraph (c)(1) of this section differs 
by at least $50 from the amount specified for the previous year.
    (d) Except as specified in Sec. 1027.110(a) for motor vehicles and 
motor vehicle engines, we will use the following values to determine 
adjusted fees using the equation in paragraph (c) of this section:
    (1) The following values apply for operating costs and labor costs:

------------------------------------------------------------------------
       Engine or Vehicle Category               Op               L
------------------------------------------------------------------------
(i) Light-duty, medium-duty passenger,        $3,322,039      $2,548,110
 and complete heavy-duty highway vehicle
 certification..........................
(ii) Light-duty, medium-duty passenger,        2,858,223       2,184,331
 and complete heavy-duty highway vehicle
 in-use testing.........................
(iii) Independent Commercial Importers           344,824         264,980
 identified in Sec.  1027.105(b)(2)....
(iv) Highway motorcycles................         225,726         172,829
(v) Heavy-duty highway engines..........       1,106,224       1,625,680
(vi) Nonroad compression-ignition                486,401         545,160
 engines that are not locomotive or
 marine engines, and stationary
 compression-ignition engines with per-
 cylinder displacement below 10 liters..
(vii) Evaporative certificates related             5,039         236,670
 to nonroad and stationary engines......
(viii) All other........................         177,425         548,081
------------------------------------------------------------------------

    (2) The applicable Consumer Price Index is based on the values 
published by the Bureau of Labor Statistics for all U.S. cities using 
the ``U.S. city average'' area, ``all items,'' and ``not seasonally 
adjusted'' numbers (see ftp://ftp.bls.gov/pub/special.requests/cpi/
cpiai.txt). For example, we calculated the 2006 fees using the Consumer 
Price Index for November 2004, which is 191.0.
    (3) Fee categories for counting the number of certificates issued 
are based on the grouping shown in paragraph (d)(1) of this section.

[[Page 7]]

    (e) The following example for calculating the 2006 complete federal 
heavy duty highway vehicle fee illustrates the fee adjustment:

    Op = $1,106,224
    L = $1,625,680
    CPI2002 = 180.9
    CPI2004 = 191.0
    cert 2004 = 131
    cert2003 = 95
    Fee06 = [$1,106,224 + $1,625,680 . (191.0/180.9)] . 
1.169/[(131+95) . 0.5] = $29,200.88
    Assessed Fee = $29,201

[73 FR 59184, Oct. 8, 2008, as amended at 74 FR 8423, Feb. 24, 2009; 75 
FR 22981, Apr. 30, 2010]



Sec. 1027.110  What special provisions apply for certification related to motor vehicles?

    (a) We will adjust fees for 2006 and later years for light-duty, 
medium-duty passenger, and complete heavy-duty highway vehicles as 
follows:
    (1) California-only certificates. Calculate adjusted fees for 
California-only certificates by applying the light-duty, medium-duty 
passenger, and complete heavy-duty highway vehicle certification Op and 
L values to the equation in Sec. 1027.105(c). The total number of 
certificates issued will be the total number of California-only and 
federal light-duty, medium-duty passenger, and complete heavy-duty 
highway vehicle certificates issued during the appropriate model years.
    (2) Federal certificates. Calculate adjusted fees for federal 
certificates with the following three steps:
    (i) Apply the light-duty, medium-duty passenger, and complete heavy-
duty highway vehicle certification Op and L values to the equation in 
Sec. 1027.105(c) to determine the certification portion of the light-
duty fee. The total number of certificates issued will be the total 
number of California-only and federal light-duty, medium-duty passenger 
and complete heavy-duty highway vehicle certificates issued during the 
appropriate model years.
    (ii) Apply the light-duty, medium-duty passenger, and complete 
heavy-duty highway vehicle in-use testing Op and L values to the 
equation in Sec. 1027.105(c) to determine the in-use testing portion of 
the fee. The total number of certificates issued will be the total 
number of federal light-duty, medium-duty passenger, and complete heavy-
duty highway vehicle certificates issued during the appropriate model 
years.
    (iii) Add the certification and in-use testing portions determined 
in paragraphs (a)(2)(i) and (ii) of this section to determine the total 
light-duty, medium-duty passenger, and complete heavy-duty highway 
vehicle fee for each federal certificate.
    (b) For light-duty vehicles, light-duty trucks, medium-duty 
passenger vehicles, highway motorcycles, and complete heavy-duty highway 
vehicles subject to exhaust emission standards, the number of 
certificates issued as specified in Sec. 1027.105(d)(3) is based only 
on engine families with respect to exhaust emissions. A separate fee 
applies for each evaporative family for heavy-duty engines.
    (c) If you manufacture a heavy-duty vehicle that another company has 
certified as an incomplete vehicle such that you exceed the maximum fuel 
tank size specified by the original manufacturer in the applicable 
certificate of conformity, you must submit a new application for 
certification and certification fee for the vehicle.



Sec. 1027.115  What special provisions apply for certification related to 

nonroad and stationary engines?

    (a) For spark-ignition engines above 19 kW that we regulate under 40 
CFR part 1048 and for all compression-ignition engines, the applicable 
fee is based only on engine families with respect to exhaust emissions.
    (b) For manufacturers certifying recreational vehicles with respect 
to both exhaust and evaporative emission standards, fees are determined 
using one of the following approaches:
    (1) If your engine family includes demonstration of compliance with 
both exhaust and evaporative emission standards, the applicable fee is 
based on certification related to the combined family. No separate fee 
applies for certification with respect to evaporative emission 
standards. These are all considered engine families complying with 
exhaust emissions for determining the number of certificates for 
calculating fees for later years.

[[Page 8]]

    (2) If you have separate families for demonstrating compliance with 
exhaust and evaporative emission standards, a separate fee from the 
appropriate fee category applies for each unique family. Also, the 
number of certificates issued as specified in Sec. 1027.105(d)(3) is 
based on a separate count of emission families for exhaust and 
evaporative emissions for each respective fee category.
    (c) For manufacturers certifying other spark-ignition engines or 
equipment with respect to exhaust and evaporative emission standards, a 
separate fee from the appropriate fee category applies for each unique 
family. A single engine or piece of equipment may involve separate 
emission families and certification fees for exhaust and evaporative 
emissions. Also, the number of certificates issued as specified in Sec. 
1027.105(d)(3) is based on a separate count of emission families for 
exhaust and evaporative emissions for each respective fee category.
    (d) For any certification related to evaporative emissions from 
engines, equipment, or components not covered by paragraph (a) through 
(c) of this section, the fee applies for each certified product 
independent of certification for exhaust emissions, as illustrated in 
the following examples:
    (1) A fuel tank certified to meet permeation and diurnal emission 
standards would count as a single family for assessing the certification 
fee and for calculating fee amounts for future years.
    (2) If an equipment manufacturer applies for certification to 
generate or use emission credits for fuel tanks and fuel lines, each 
affected fuel-tank and fuel-line family would count as a single family 
for assessing the certification fee and for calculating fee amounts for 
future years. This fee applies whether or not the equipment manufacturer 
is applying for certification to demonstrate compliance with another 
emission standard, such as running losses.
    (e) If you certify fuel system components under 40 CFR part 1060, a 
single fee applies for each emission family even if those components are 
used with different types of nonroad or stationary engines.
    (f) If your application for certification relates to emission 
standards that apply only in California, you must pay the same fee 
identified for meeting EPA standards.
    (g) For marine compression-ignition engines, if you apply for a 
Federal certificate and an EIAPP certificate for the same engine family, 
a single fee applies for the engine family (see 40 CFR parts 94, 1042, 
and 1043).
    (h) If you produce engines for multiple categories in a single 
engine family, a single fee applies for the engine family. For example, 
40 CFR 60.4210 allows you to produce stationary and nonroad compression-
ignition engines in a single engine family. If the certification fee for 
the different types of engines is different, the fee that applies for 
these engines is based on the emission standards to which you certify 
the engine family. For example, if you certify marine diesel engines to 
the standards that apply to land-based nonroad diesel engines under 40 
CFR 94.912, the certification fee is based on the rate that applies for 
land-based nonroad diesel engines.

[73 FR 59184, Oct. 8, 2008, as amended at 75 FR 22982, Apr. 30, 2010]



Sec. 1027.120  Can I qualify for reduced fees?

    (a) Eligibility requirements. Both of the following conditions must 
be met before you are eligible for a reduced fee:
    (1) The certificate is to be used for sale of vehicles or engines 
within the United States.
    (2) The full fee for an application for certification for a model 
year exceeds 1.0% of the aggregate projected retail sales price of all 
vehicles or engines covered by the certificate.
    (b) Initial reduced fee calculation. (1) If the conditions of 
paragraph (a) of this section are met, the initial fee paid must be $750 
or 1.0% of the aggregate projected retail sales price of all the 
vehicles or engines to be covered by the certificate, whichever is 
greater.
    (2) For vehicles or engines that are converted to operate on an 
alternative fuel using as the basis for the conversion a vehicle or 
engine that is covered by an existing certificate of conformity, the 
cost basis used in this section must be the aggregate projected

[[Page 9]]

retail value-added to the vehicle or engine by the conversion rather 
than the full cost of the vehicle or engine. For this provision to 
apply, the existing certificate must cover the same sales area and model 
year as the requested certificate for the converted vehicle or engine.
    (3) For remanufacturing systems, the cost basis used in this section 
must be the aggregate projected retail cost of a complete remanufacture, 
including the cost of the replacement components, software, and 
assembly.
    (4) For ICI certification applications, the cost basis of this 
section must be the aggregate projected retail cost of the entire 
vehicle(s) or engine(s), not just the value added by the conversion. If 
the vehicles/engines covered by an ICI certificate are not being offered 
for sale, the manufacturer shall use the fair retail market value of the 
vehicles/engines as the retail sale price required in this section. For 
an ICI application for certification, the retail sales price (or fair 
retail market value) must be based on the applicable National Automobile 
Dealer's Association (NADA) appraisal guide and/or other evidence of the 
actual market value.
    (5) The aggregate cost used in this section must be based on the 
total projected sales of all vehicles and engines under a certificate, 
including vehicles and engines modified under the modification and test 
option in 40 CFR 85.1509 and 89.609. The projection of the number of 
vehicles or engines to be covered by the certificate and their projected 
retail selling price must be based on the latest information available 
at the time of the fee payment.
    (6) You may submit a reduced fee as described in this section if it 
is accompanied by a calculation of the fee based on the number of 
vehicles covered and the projected aggregate retail sales price as 
specified on the fee filing form. Your reduced fee calculation shall be 
deemed approved unless we determine that the criteria of this section 
have not been met. We may make such a determination either before or 
after issuing a certificate of conformity. If we determine that the 
requirements of this section have not been met, we may deny future 
reduced fee applications and require submission of the full fee payment 
until you demonstrate to our satisfaction that your reduced fee 
submissions are based on accurate data and that final fee payments are 
made within 45 days of the end of the model year.
    (7) If we deny your request for a reduced fee, you must send us the 
appropriate fee within 30 days after we notify you.
    (c) Revision of the number of vehicles or engines covered by the 
certificate. (1) You must take both of the following steps if the number 
of vehicles or engines to be produced or imported under the certificate 
exceeds the number indicated on the certificate (including a certificate 
under which modification and test vehicles are imported under 40 CFR 
85.1509 and 89.609):
    (i) Request that we revise the certificate with a number that 
indicates the new projection of the vehicles or engines to be covered by 
the certificate. We must issue the revised certificate before the 
additional number of vehicles or engines may be sold or finally imported 
into the United States.
    (ii) Submit payment of 1.0% of the aggregate projected retail sales 
price of all the additional vehicles or engines.
    (2) You must receive a revised certificate before the sale or final 
importation of any vehicles or engines, including modification and test 
vehicles, that are not originally included in the certificate issued 
under paragraph (b) of this section, or as indicated in a revised 
certificate issued under paragraph (c)(1) of this section. Such vehicles 
that are sold or imported before we issue a revised certificate are 
deemed to be not covered by a certificate of conformity.
    (d) Final reduced fee calculation and adjustment. (1) If the initial 
fee payment is less than the final reduced fee, you must pay the 
difference between the initial reduced fee and the final reduced fee 
using the provisions of Sec. 1027.130. Calculate the final reduced fee 
using the procedures of paragraph (c) of this section but using actual 
production figures rather than projections and actual retail sales value 
rather than projected retail sales value.
    (2) You must pay the difference between the initial reduced fee and 
the final reduced fee within 45 days of the

[[Page 10]]

end of the model year. The total fees paid for a certificate may not 
exceed the applicable full fee specified in Sec. 1027.105. We may void 
the applicable certificate if you fail to make a complete payment within 
the specified period. We may also refuse to grant reduced fee requests 
submitted under paragraph (b)(5) of this section.
    (3) If the initial fee payment exceeds the final reduced fee, you 
may request a refund using the procedures of Sec. 1027.125.
    (e) Records retention. You are subject to the applicable 
requirements to maintain records under this chapter. If you fail to 
maintain required records or provide them to us, we may void the 
certificate associated with such records. You must also record the basis 
you used to calculate the projected sales and fair retail market value 
and the actual sales and retail price for the vehicles and engines 
covered by each certificate issued under this section. You must keep 
this information for at least three years after we issue the certificate 
and provide it to us within 30 days of our request.



Sec. 1027.125  Can I get a refund?

    (a) We will refund the total fee imposed under this part if you ask 
for a refund after failing to get a certificate for any reason.
    (b) If your actual sales or the actual retail prices in a given year 
are less than you projected for calculating a reduced fee under Sec. 
1027.120, we will refund the appropriate portion of the fee. We will 
also refund a portion of the initial payment if it exceeds the final fee 
for the engines, vehicles, or equipment covered by the certificate 
application.
    (1) You are eligible for a partial refund related only to a 
certificate used for the sale of engines, vehicles, or equipment under 
that certificate in the United States.
    (2) Include all the following in your request for a partial refund 
of reduced fee payments:
    (i) State that you sold engines, vehicles, or equipment under the 
applicable certificate in the United States.
    (ii) Identify the number of engines, vehicles, or equipment you 
produced or imported under the certificate, and whether the engines, 
vehicles, or equipment have been sold.
    (iii) Identify the reduced fee that you paid under the applicable 
certificate.
    (iv) Identify the actual retail sales price for the engines, 
vehicles, or equipment produced or imported under the certificate.
    (v) Calculate the final value of the reduced fee using actual 
production figures and retail prices.
    (vi) Calculate the refund amount.
    (c) We will approve your request to correct errors in the amount of 
the fee.
    (d) All refunds must be applied for within six months after the end 
of the model year.
    (e) Send refund and correction requests to the Fee Program 
Specialist, U.S. Environmental Protection Agency, Vehicle Programs and 
Compliance Division, 2000 Traverwood Dr., Ann Arbor, MI 48105, online at 
www.Pay.gov, or as specified in guidance by the Administrator.
    (f) You may request to have refund amounts applied to the amount due 
on another application for certification.



Sec. 1027.130  How do I make a fee payment?

    (a) Pay fees to the order of the Environmental Protection Agency in 
U.S. dollars using any of the following methods: money order, bank 
draft, certified check, corporate check, electronic funds transfer, any 
method available for payment online at www.Pay.gov., or as specified in 
EPA guidance.
    (b) Send a completed fee filing form to the address designated on 
the form for each fee payment or electronically at www.Pay.gov., or as 
provided in EPA guidance. These forms are available on the Internet at 
http://www.epa.gov/otaq/guidance.htm.
    (c) You must pay the fee amount due before we will start to process 
an application for certification.
    (d) If we deny a reduced fee, you must pay the proper fee within 30 
days after we notify you of our decision.



Sec. 1027.135  What provisions apply to a deficient filing?

    (a) Any filing under this part is deficient if it is not accompanied 
by a

[[Page 11]]

completed fee filing form and full payment of the appropriate fee.
    (b) A deficient filing will be rejected unless the completed form 
and full payment are submitted within a time limit we specify. We will 
not process an application for certification if the associated filing is 
deficient.



Sec. 1027.140  What reporting and recordkeeping requirements apply under this part?

    Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the 
Office of Management and Budget approves the reporting and recordkeeping 
specified in the applicable regulations. The following items illustrate 
the kind of reporting and recordkeeping we require for engines, 
vehicles, and equipment regulated under this part:
    (a) Filling out fee filing forms under Sec. 1027.130.
    (b) Retaining fee records, including reduced fee documentation, 
under Sec. 1027.120.
    (c) Requesting refunds under Sec. 1027.125.



Sec. 1027.150  What definitions apply to this part?

    The definitions in this section apply to this part. As used in this 
part, all undefined terms have the meaning the Act or the standard-
setting part gives to them. The definitions follow:
    Application for Certification means a manufacturer's submission of 
an application for certification.
    California-only certificate is a certificate of conformity issued by 
EPA showing compliance with emission standards established by 
California.
    Federal certificate is a certificate of conformity issued by EPA 
showing compliance with EPA emission standards specified in one of the 
standard-setting parts specified in Sec. 1027.101(a).
    Light-duty means relating to light-duty vehicles and light-duty 
trucks.
    Manufacturer has the meaning given in section 216(1) of the Act. In 
general, this term includes any person who manufactures an engine, 
vehicle, vessel, or piece of equipment for sale in the United States or 
otherwise introduces a new engine, vehicle, vessel, or piece of 
equipment into commerce in the United States. This includes importers 
who import such products for resale, but not dealers.
    Total number of certificates issued means the number of certificates 
for which fees have been paid. This term is not intended to represent 
multiple certificates that are issued within a single family or test 
group.
    Void has the meaning given in 40 CFR 1068.30.
    We (us, our) means the Administrator of the Environmental Protection 
Agency and any authorized representatives.

[73 FR 59184, Oct. 8, 2008, as amended at 75 FR 22982, Apr. 30, 2010]



Sec. 1027.155  What abbreviations apply to this subpart?

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

CFR.......................................  Code of Federal Regulations.
EPA.......................................  U.S. Environmental
                                             Protection Agency.
Evap......................................  Evaporative Emissions.
EVECP.....................................  Engine, vehicle, and
                                             equipment compliance
                                             program.
ICI.......................................  Independent Commercial
                                             Importer.
U.S.......................................  United States.
 



PART 1033_CONTROL OF EMISSIONS FROM LOCOMOTIVES--Table of Contents



                  Subpart A_Overview and Applicability

Sec.
1033.1 Applicability.
1033.5 Exemptions and exclusions.
1033.10 Organization of this part.
1033.15 Other regulation parts that apply for locomotives.
1033.30 Submission of information.

          Subpart B_Emission Standards and Related Requirements

1033.101 Exhaust emission standards.
1033.102 Transition to the standards of this part.
1033.110 Emission diagnostics--general requirements.
1033.112 Emission diagnostics for SCR systems.
1033.115 Other requirements.
1033.120 Emission-related warranty requirements.
1033.125 Maintenance instructions.
1033.130 Instructions for engine remanufacturing or engine installation.
1033.135 Labeling.

[[Page 12]]

1033.140 Rated power.
1033.150 Interim provisions.

                  Subpart C_Certifying Engine Families

1033.201 General requirements for obtaining a certificate of conformity.
1033.205 Applying for a certificate of conformity.
1033.210 Preliminary approval.
1033.220 Amending maintenance instructions.
1033.225 Amending applications for certification.
1033.230 Grouping locomotives into engine families.
1033.235 Emission testing required for certification.
1033.240 Demonstrating compliance with exhaust emission standards.
1033.245 Deterioration factors.
1033.250 Reporting and recordkeeping.
1033.255 EPA decisions.

 Subpart D_Manufacturer and Remanufacturer Production Line Testing and 
                             Audit Programs

1033.301 Applicability.
1033.305 General requirements.
1033.310 Sample selection for testing.
1033.315 Test procedures.
1033.320 Calculation and reporting of test results.
1033.325 Maintenance of records; submittal of information.
1033.330 Compliance criteria for production line testing.
1033.335 Remanufactured locomotives: installation audit requirements.
1033.340 Suspension and revocation of certificates of conformity.

                        Subpart E_In-use Testing

1033.401 Applicability.
1033.405 General provisions.
1033.410 In-use test procedure.
1033.415 General testing requirements.
1033.420 Maintenance, procurement and testing of in-use locomotives.
1033.425 In-use test program reporting requirements.

                        Subpart F_Test Procedures

1033.501 General provisions.
1033.505 Ambient conditions.
1033.510 Auxiliary power units.
1033.515 Discrete-mode steady-state emission tests of locomotives and 
          locomotive engines.
1033.520 Alternative ramped modal cycles.
1033.525 Smoke testing.
1033.530 Duty cycles and calculations.
1033.535 Adjusting emission levels to account for infrequently 
          regenerating aftertreatment devices.

                 Subpart G_Special Compliance Provisions

1033.601 General compliance provisions.
1033.610 Small railroad provisions.
1033.615 Voluntarily subjecting locomotives to the standards of this 
          part.
1033.620 Hardship provisions for manufacturers and remanufacturers.
1033.625 Special certification provisions for non-locomotive-specific 
          engines.
1033.630 Staged-assembly and delegated assembly exemptions.
1033.640 Provisions for repowered and refurbished locomotives.
1033.645 Non-OEM component certification program.
1033.650 Incidental use exemption for Canadian and Mexican locomotives.
1033.652 Special provisions for exported locomotives.
1033.655 Special provisions for certain Tier 0/Tier 1 locomotives.

       Subpart H_Averaging, Banking, and Trading for Certification

1033.701 General provisions.
1033.705 Calculating emission credits.
1033.710 Averaging emission credits.
1033.715 Banking emission credits.
1033.720 Trading emission credits.
1033.722 Transferring emission credits.
1033.725 Requirements for your application for certification.
1033.730 ABT reports.
1033.735 Required records.
1033.740 Credit restrictions.
1033.745 Compliance with the provisions of this subpart.
1033.750 Changing a locomotive's FEL at remanufacture.

             Subpart I_Requirements for Owners and Operators

1033.801 Applicability.
1033.805 Remanufacturing requirements.
1033.810 In-use testing program.
1033.815 Maintenance, operation, and repair.
1033.820 In-use locomotives.
1033.825 Refueling requirements.

          Subpart J_Definitions and Other Reference Information

1033.901 Definitions.
1033.905 Symbols, acronyms, and abbreviations.
1033.915 Confidential information.
1033.920 How to request a hearing.
1033.925 Reporting and recordkeeping requirements.

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

    Source: 73 FR 37197, June 30, 2008, unless otherwise noted.

[[Page 13]]



                  Subpart A_Overview and Applicability



Sec. 1033.1  Applicability.

    The regulations in this part 1033 apply for all new locomotives and 
all locomotives containing a new locomotive engine, except as provided 
in Sec. 1033.5.
    (a) Standards begin to apply each time a locomotive or locomotive 
engine is originally manufactured or otherwise becomes new (defined in 
Sec. 1033.901). The requirements of this part continue to apply as 
specified after locomotives cease to be new.
    (b) Standards apply to the locomotive. However, in certain cases, 
the manufacturer/remanufacturer is allowed to test a locomotive engine 
instead of a complete locomotive, such as for certification. Also, you 
are not required to complete assembly of a locomotive to obtain a 
certificate of conformity for it, provided you meet the definition of 
``manufacturer'' or ``remanufacturer'' (as applicable) in Sec. 
1033.901. For example, an engine manufacturer may obtain a certificate 
for locomotives which it does not manufacture, if the locomotives use 
its engines.
    (c) Standards apply based on the year in which the locomotive was 
originally manufactured. The date of original manufacture is generally 
the date on which assembly is completed for the first time. For example, 
all locomotives originally manufactured in calendar years 2002, 2003, 
and 2004 are subject to the Tier 1 emission standards for their entire 
service lives.
    (d) The following provisions apply when there are multiple persons 
meeting the definition of manufacturer or remanufacturer in Sec. 
1033.901:
    (1) Each person meeting the definition of manufacturer must comply 
with the requirements of this part that apply to manufacturers; and each 
person meeting the definition of remanufacturer must comply with the 
requirements of this part that apply to remanufacturers. However, if one 
person complies with a specific requirement for a given locomotive, then 
all manufacturers/remanufacturers are deemed to have complied with that 
specific requirement.
    (2) We will apply the requirements of subparts C, D, and E of this 
part to the manufacturer/remanufacturer that obtains the certificate of 
conformity for the locomotive. Other manufacturers and remanufacturers 
are required to comply with the requirements of subparts C, D, and E of 
this part only when notified by us. In our notification, we will specify 
a reasonable time period in which you need to comply with the 
requirements identified in the notice. See Sec. 1033.601 for the 
applicability of 40 CFR part 1068 to these other manufacturers and 
remanufacturers.
    (3) For example, we may require a railroad that installs certified 
kits but does not hold the certificate to perform production line 
auditing of the locomotives that it remanufactures. However, if we did, 
we would allow the railroad a reasonable amount of time to develop the 
ability to perform such auditing.
    (e) The provisions of this part apply as specified for locomotives 
manufactured or remanufactured on or after July 7, 2008. See Sec. 
1033.102 to determine whether the standards of this part or the 
standards of 40 CFR part 92 apply for model years 2008 through 2012. For 
example, for a locomotive that was originally manufactured in 2007 and 
remanufactured on April 10, 2014, the provisions of this part begin to 
apply on April 10, 2014.



Sec. 1033.5  Exemptions and exclusions.

    (a) Subpart G of this part exempts certain locomotives from the 
standards of this part.
    (b) The definition of ``locomotive'' in Sec. 1033.901 excludes 
certain vehicles. In general, the engines used in such excluded 
equipment are subject to standards under other regulatory parts. For 
example, see 40 CFR part 1039 for requirements that apply to diesel 
engines used in equipment excluded from the definition of ``locomotive'' 
in Sec. 1033.901. The following locomotives are also excluded from the 
provisions of this part 1033:
    (1) Historic locomotives powered by steam engines. For a locomotive 
that was originally manufactured after January 1, 1973 to be excluded 
under this paragraph (b)(1), it may not use any internal combustion 
engines and must be

[[Page 14]]

used only for historical purposes such as at a museum or similar public 
attraction.
    (2) Locomotives powered only by an external source of electricity.
    (c) The requirements and prohibitions of this part apply only for 
locomotives that have become ``new'' (as defined in Sec. 1033.901) on 
or after July 7, 2008.
    (d) The provisions of this part do not apply for any auxiliary 
engine that only provides hotel power. In general, these engines are 
subject to the provisions of 40 CFR part 1039. However, depending on the 
engine cycle, model year and power rating, the engines may be subject to 
other regulatory parts instead.
    (e) Manufacturers and owners of locomotives that operate only on 
non-standard gauge rails may ask us to exclude such locomotives from 
this part by excluding them from the definition of ``locomotive''.



Sec. 1033.10  Organization of this part.

    The regulations in this part 1033 contain provisions that affect 
locomotive manufacturers, remanufacturers, and others. However, the 
requirements of this part are generally addressed to the locomotive 
manufacturer/remanufacturer. The term ``you'' generally means the 
manufacturer/remanufacturer, as defined in Sec. 1033.901. This part 
1033 is divided into the following subparts:
    (a) Subpart A of this part defines the applicability of part 1033 
and gives an overview of regulatory requirements.
    (b) Subpart B of this part describes the emission standards and 
other requirements that must be met to certify locomotives under this 
part. Note that Sec. 1033.150 discusses certain interim requirements 
and compliance provisions that apply only for a limited time.
    (c) Subpart C of this part describes how to apply for a certificate 
of conformity.
    (d) Subpart D of this part describes general provisions for testing 
and auditing production locomotives.
    (e) Subpart E of this part describes general provisions for testing 
in-use locomotives.
    (f) Subpart F of this part and 40 CFR part 1065 describe how to test 
locomotives and engines.
    (g) Subpart G of this part and 40 CFR part 1068 describe 
requirements, prohibitions, exemptions, and other provisions that apply 
to locomotive manufacturer/remanufacturers, owners, operators, and all 
others.
    (h) Subpart H of this part describes how you may generate and use 
emission credits to certify your locomotives.
    (i) Subpart I of this part describes provisions for locomotive 
owners and operators.
    (j) Subpart J of this part contains definitions and other reference 
information.



Sec. 1033.15  Other regulation parts that apply for locomotives.

    (a) Part 1065 of this chapter describes procedures and equipment 
specifications for testing engines to measure exhaust emissions. Subpart 
F of this part 1033 describes how to apply the provisions of part 1065 
of this chapter to test locomotives to determine whether they meet the 
exhaust emission standards in this part.
    (b) The requirements and prohibitions of part 1068 of this chapter 
apply to everyone, including anyone who manufactures, remanufactures, 
imports, maintains, owns, or operates any of the locomotives subject to 
this part 1033. See Sec. 1033.601 to determine how to apply the part 
1068 regulations for locomotives. Part 1068 of this chapter describes 
general provisions, including the following areas:
    (1) Prohibited acts and penalties for locomotive manufacturer/
remanufacturers and others.
    (2) Exclusions and exemptions for certain locomotives.
    (3) Importing locomotives.
    (4) Selective enforcement audits of your production.
    (5) Defect reporting and recall.
    (6) Procedures for hearings.
    (c) Other parts of this chapter apply if referenced in this part.

[73 FR 37197, June 30, 2008, as amended at 75 FR 22982, Apr. 30, 2010]



Sec. 1033.30  Submission of information.

    (a) This part includes various requirements to record data or other 
information. Refer to Sec. 1033.925 and 40 CFR 1068.25 regarding 
recordkeeping

[[Page 15]]

requirements. Unless we specify otherwise, store these records in any 
format and on any media and keep them readily available for one year 
after you send an associated application for certification, or one year 
after you generate the data if they do not support an application for 
certification. You must promptly send us organized, written records in 
English if we ask for them. We may review them at any time.
    (b) The regulations in Sec. 1033.255 and 40 CFR 1068.101 describe 
your obligation to report truthful and complete information and the 
consequences of failing to meet this obligation. This includes 
information not related to certification.
    (c) Send all reports and requests for approval to the Designated 
Compliance Officer (see Sec. 1033.901).
    (d) Any written information we require you to send to or receive 
from another company is deemed to be a required record under this 
section. Such records are also deemed to be submissions to EPA. We may 
require you to send us these records whether or not you are a 
certificate holder.

[75 FR 22982, Apr. 30, 2010]



          Subpart B_Emission Standards and Related Requirements



Sec. 1033.101  Exhaust emission standards.

    See Sec. Sec. 1033.102 and 1033.150 to determine how the emission 
standards of this section apply before 2023.
    (a) Emission standards for line-haul locomotives. Exhaust emissions 
from your new locomotives may not exceed the applicable emission 
standards in Table 1 to this section during the useful life of the 
locomotive. (Note: Sec. 1033.901 defines locomotives to be ``new'' when 
originally manufactured and when remanufactured.) Measure emissions 
using the applicable test procedures described in subpart F of this 
part.

                       Table 1 to Sec.  1033.101--Line-Haul Locomotive Emission Standards
----------------------------------------------------------------------------------------------------------------
                                                                             Standards (g/bhp-hr)
    Year of original manufacture         Tier of standards   ---------------------------------------------------
                                                                  NOX           PM           HC           CO
----------------------------------------------------------------------------------------------------------------
1973-1992 \a\.......................  Tier 0 \b\............          8.0         0.22         1.00          5.0
1993 \a\-2004.......................  Tier 1 \b\............          7.4         0.22         0.55          2.2
2005-2011...........................  Tier 2 \b\............          5.5     \e\ 0.10         0.30          1.5
2012-2014...........................  Tier 3 \c\............          5.5         0.10         0.30          1.5
2015 or later.......................  Tier 4 \d\............          1.3         0.03         0.14          1.5
----------------------------------------------------------------------------------------------------------------
\a\ Locomotive models that were originally manufactured in model years 1993 through 2001, but that were not
  originally equipped with a separate coolant system for intake air are subject to the Tier 0 rather than the
  Tier 1 standards.
\b\ Line-haul locomotives subject to the Tier 0 through Tier 2 emission standards must also meet switch
  standards of the same tier.
\c\ Tier 3 line-haul locomotives must also meet Tier 2 switch standards.
\d\ Manufacturers may elect to meet a combined NOX+HC standard of 1.4 g/bhp-hr instead of the otherwise
  applicable Tier 4 NOX and HC standards, as described in paragraph (j) of this section.
\e\ The PM standard for newly remanufactured Tier 2 line-haul locomotives is 0.20 g/bhp-hr until January 1,
  2013, except as specified in Sec.  1033.150(a).

    (b) Emission standards for switch locomotives. Exhaust emissions 
from your new locomotives may not exceed the applicable emission 
standards in Table 2 to this section during the useful life of the 
locomotive. (Note: Sec. 1033.901 defines locomotives to be ``new'' when 
originally manufactured and when remanufactured.) Measure emissions 
using the applicable test procedures described in subpart F of this 
part.

                        Table 2 to Sec.  1033.101--Switch Locomotive Emission Standards
----------------------------------------------------------------------------------------------------------------
                                                                             Standards (g/bhp-hr)
    Year of original manufacture         Tier of standards   ---------------------------------------------------
                                                                  NOX           PM           HC           CO
----------------------------------------------------------------------------------------------------------------
1973-2001...........................  Tier 0................         11.8         0.26         2.10          8.0
2002-2004...........................  Tier 1 a..............         11.0         0.26         1.20          2.5
2005-2010...........................  Tier 2 a..............          8.1       b 0.13         0.60          2.4
2011-2014...........................  Tier 3................          5.0         0.10         0.60          2.4

[[Page 16]]

 
2015 or later.......................  Tier 4................        c 1.3         0.03       c 0.14          2.4
----------------------------------------------------------------------------------------------------------------
\a\ Switch locomotives subject to the Tier 1 through Tier 2 emission standards must also meet line-haul
  standards of the same tier.
\b\ The PM standard for new Tier 2 switch locomotives is 0.24 g/bhp-hr until January 1, 2013.
\c\ Manufacturers may elect to meet a combined NOX+HC standard of 1.4 g/bhp-hr instead of the otherwise
  applicable Tier 4 NOX and HC standards, as described in paragraph (j) of this section.

    (c) Smoke standards. The smoke opacity standards specified in Table 
3 to this section apply only for locomotives certified to one or more PM 
standards or FELs greater than 0.05 g/bhp-hr. Smoke emissions, when 
measured in accordance with the provisions of Subpart F of this part, 
shall not exceed these standards.

                  Table 3 to Sec.  1033.101--Smoke Standards for Locomotives (Percent Opacity)
----------------------------------------------------------------------------------------------------------------
                                                                   Steady-state     30-sec peak     3-sec peak
----------------------------------------------------------------------------------------------------------------
Tier 0..........................................................              30              40              50
Tier 1..........................................................              25              40              50
Tier 2 and later................................................              20              40              50
----------------------------------------------------------------------------------------------------------------

    (d) Averaging, banking, and trading. You may generate or use 
emission credits under the averaging, banking, and trading (ABT) program 
as described in subpart H of this part to comply with the NOX 
and/or PM standards of this part. You may also use ABT to comply with 
the Tier 4 HC standards of this part as described in paragraph (j) of 
this section. Generating or using emission credits requires that you 
specify a family emission limit (FEL) for each pollutant you include in 
the ABT program for each engine family. These FELs serve as the emission 
standards for the engine family with respect to all required testing 
instead of the standards specified in paragraphs (a) and (b) of this 
section. FELs may not be higher than the following limits:
    (1) FELs for Tier 0 and Tier 1 locomotives originally manufactured 
before 2002 may have any value.
    (2) FELs for Tier 1 locomotives originally manufactured 2002 through 
2004 may not exceed 9.5 g/bhp-hr for NOX emissions or 0.60 g/
bhp-hr for PM emissions measured over the line-haul duty cycle. FELs for 
these locomotives may not exceed 14.4 g/bhp-hr for NOX 
emissions or 0.72 g/bhp-hr for PM emissions measured over the switch 
duty cycle.
    (3) FELs for Tier 2 and Tier 3 locomotives may not exceed the Tier 1 
standards of this section.
    (4) FELs for Tier 4 locomotives may not exceed the Tier 3 standards 
of this section.
    (e) Notch standards. (1) Exhaust emissions from locomotives may not 
exceed the notch standards specified in paragraph (e)(2) of this 
section, except as allowed in paragraph (e)(3) of this section, when 
measured using any test procedures under any test conditions.
    (2) Except as specified in paragraph (e)(5) of this section, 
calculate the applicable notch standards for each pollutant for each 
notch from the certified notch emission rate as follows:

Notch standard = (Ei) x (1.1 + (1--ELHi/std))

Where:

Ei = The deteriorated brake-specific emission rate (for 
pollutant i) for the notch (i.e., the brake-specific emission rate 
calculated under subpart F of this part, adjusted by the deterioration 
factor in the application for certification); where i is NOX, 
HC, CO or PM.
ELHi = The deteriorated line-haul duty-cycle weighted brake-
specific emission rate for pollutant i, as reported in the application 
for certification, except as specified in paragraph (e)(6) of this 
section.

[[Page 17]]

std = The applicable line-haul duty-cycle standard/FEL, except as 
specified in paragraph (e)(6) of this section.

    (3) Exhaust emissions that exceed the notch standards specified in 
paragraph (e)(2) of this section are allowed only if one of the 
following is true:
    (i) The same emission controls are applied during the test 
conditions causing the noncompliance as were applied during 
certification test conditions (and to the same degree).
    (ii) The exceedance result from a design feature that was described 
(including its effect on emissions) in the approved application for 
certification, and is:
    (A) Necessary for safety;
    (B) Addresses infrequent regeneration of an aftertreatment device; 
or
    (C) Otherwise allowed by this part.
    (4) Since you are only required to test your locomotive at the 
highest emitting dynamic brake point, the notch caps that you calculate 
for the dynamic brake point that you test also apply for other dynamic 
brake points.
    (5) No PM notch caps apply for locomotives certified to a PM 
standard or FEL of 0.05 g/bhp-hr or lower.
    (6) For switch locomotives that are not subject to line-haul 
standards, ELH\i\ equals the deteriorated switch duty-cycle weighted 
brake-specific emission rate for pollutant i and std is the applicable 
switch cycle standard/FEL.
    (f) Fuels. The exhaust emission standards in this section apply for 
locomotives using the fuel type on which the locomotives in the engine 
family are designed to operate.
    (1) You must meet the numerical emission standards for HC in this 
section based on the following types of hydrocarbon emissions for 
locomotives powered by the following fuels:
    (i) Alcohol-fueled locomotives: THCE emissions for Tier 3 and 
earlier locomotives and NMHCE for Tier 4.
    (ii) Gaseous-fueled locomotives: NMHC emissions.
    (iii) Diesel-fueled and other locomotives: THC emissions for Tier 3 
and earlier locomotives and NMHC for Tier 4. Note that manufacturers/
remanufacturers may choose to not measure NMHC and assume that NMHC is 
equal to THC multiplied by 0.98 for diesel-fueled locomotives.
    (2) You must certify your diesel-fueled locomotives to use the 
applicable grades of diesel fuel as follows:
    (i) Certify your Tier 4 and later diesel-fueled locomotives for 
operation with only Ultra Low Sulfur Diesel (ULSD) fuel. Use ULSD as the 
test fuel for these locomotives.
    (ii) Certify your Tier 3 and earlier diesel-fueled locomotives for 
operation with only ULSD fuel if they include sulfur-sensitive 
technology and you demonstrate compliance using a ULSD test fuel.
    (iii) Certify your Tier 3 and earlier diesel-fueled locomotives for 
operation with either ULSD fuel or Low Sulfur Diesel (LSD) fuel if they 
do not include sulfur-sensitive technology or if you demonstrate 
compliance using an LSD test fuel (including commercial LSD fuel).
    (iv) For Tier 1 and earlier diesel-fueled locomotives, if you 
demonstrate compliance using a ULSD test fuel, you must adjust the 
measured PM emissions upward by 0.01 g/bhp-hr to make them equivalent to 
tests with LSD. We will not apply this adjustment for our testing.
    (g) Useful life. The emission standards and requirements in this 
subpart apply to the emissions from new locomotives for their useful 
life. The useful life is generally specified as MW-hrs and years, and 
ends when either of the values (MW-hrs or years) is exceeded or the 
locomotive is remanufactured.
    (1) The minimum useful life in terms of MW-hrs is equal to the 
product of the rated horsepower multiplied by 7.50. The minimum useful 
life in terms of years is ten years. For locomotives originally 
manufactured before January 1, 2000 and not equipped with MW-hr meters, 
the minimum useful life is equal to 750,000 miles or ten years, 
whichever is reached first. See Sec. 1033.140 for provisions related to 
rated power.
    (2) You must specify a longer useful life if the locomotive or 
locomotive engine is designed to last longer than the applicable minimum 
useful life. Recommending a time to remanufacture that is longer than 
the minimum useful life is one indicator of a longer design life.

[[Page 18]]

    (3) Manufacturers/remanufacturers of locomotives with non-
locomotive-specific engines (as defined in Sec. 1033.901) may ask us 
(before certification) to allow a shorter useful life for an engine 
family containing only non-locomotive-specific engines. We may approve a 
shorter useful life, in MW-hrs of locomotive operation but not in years, 
if we determine that these locomotives will rarely operate longer than 
the shorter useful life. If engines identical to those in the engine 
family have already been produced and are in use, your demonstration 
must include documentation from such in-use engines. In other cases, 
your demonstration must include an engineering analysis of information 
equivalent to such in-use data, such as data from research engines or 
similar engine models that are already in production. Your demonstration 
must also include any overhaul interval that you recommend, any 
mechanical warranty that you offer for the engine or its components, and 
any relevant customer design specifications. Your demonstration may 
include any other relevant information.
    (4) Remanufacturers of locomotive or locomotive engine 
configurations that have been previously certified under paragraph 
(g)(3) of this section to a useful life that is shorter than the value 
specified in paragraph (g)(1) of this section may certify to that same 
shorter useful life value without request.
    (5) In unusual circumstances, you may ask us to allow you to certify 
some locomotives in your engine family to a partial useful life. This 
allowance is limited to cases in which some or all of the locomotive's 
power assemblies have been operated previously such that the locomotive 
will need to be remanufactured prior to the end of the otherwise 
applicable useful life. Unless we specify otherwise, define the partial 
useful life based on the total MW-hrs since the last remanufacture to be 
consistent with other locomotives in the family. For example, this may 
apply for a previously uncertified locomotive that becomes ``new'' when 
it is imported, but that was remanufactured two years earlier 
(representing 25 percent of the normal useful life period). If such a 
locomotive could be brought into compliance with the applicable 
standards without being remanufactured, you may ask to include it in 
your engine family for the remaining 75 percent of its useful life 
period.
    (h) Applicability for testing. The emission standards in this 
subpart apply to all testing, including certification testing, 
production-line testing, and in-use testing.
    (i) Alternate CO standards. Manufacturers/remanufacturers may 
certify Tier 0, Tier 1, or Tier 2 locomotives to an alternate CO 
emission standard of 10.0 g/bhp-hr instead of the otherwise applicable 
CO standard if they also certify those locomotives to alternate PM 
standards less than or equal to one-half of the otherwise applicable PM 
standard. For example, a manufacturer certifying Tier 1 locomotives to a 
0.11 g/bhp-hr PM standard may certify those locomotives to the alternate 
CO standard of 10.0 g/bhp-hr.
    (j) Alternate NOX+HC standards for Tier 4. Manufacturers/
remanufacturers may use credits accumulated through the ABT program to 
certify Tier 4 locomotives to an alternate NOX+HC emission 
standard of 1.4 g/bhp-hr (instead of the otherwise applicable 
NOX and NMHC standards). You may use NOX credits 
to show compliance with this standard by certifying your family to a 
NOX+HC FEL. Calculate the NOX credits needed as 
specified in subpart H of this part using the NOX+HC emission 
standard and FEL in the calculation instead of the otherwise applicable 
NOX standard and FEL. You may not generate credits relative 
to the alternate standard or certify to the standard without using 
credits.
    (k) Upgrading. Upgraded locomotives that were originally 
manufactured prior to January 1, 1973 are subject to the Tier 0 
standards. (See the definition of upgrade in Sec. 1033.901.)
    (l) Other optional standard provisions. Locomotives may be certified 
to a higher tier of standards than would otherwise be required. Tier 0 
switch locomotives may be certified to both the line-haul and switch 
cycle standards. In both cases, once the locomotives become subject to 
the additional standards, they remain subject to those

[[Page 19]]

standards for the remainder of their service lives.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59188, Oct. 8, 2008; 75 
FR 22982, Apr. 30, 2010]



Sec. 1033.102  Transition to the standards of this part.

    (a) Except as specified in Sec. 1033.150(a), the Tier 0 and Tier 1 
standards of Sec. 1033.101 apply for new locomotives beginning January 
1, 2010, except as specified in Sec. 1033.150(a). The Tier 0 and Tier 1 
standards of 40 CFR part 92 apply for earlier model years.
    (b) Except as specified in Sec. 1033.150(a), the Tier 2 standards 
of Sec. 1033.101 apply for new locomotives beginning January 1, 2013. 
The Tier 2 standards of 40 CFR part 92 apply for earlier model years.
    (c) The Tier 3 and Tier 4 standards of Sec. 1033.101 apply for the 
model years specified in that section.



Sec. 1033.110  Emission diagnostics--general requirements.

    The provisions of this section apply if you equip your locomotives 
with a diagnostic system that will detect significant malfunctions in 
their emission-control systems and you choose to base your emission-
related maintenance instructions on such diagnostics. See Sec. 1033.420 
for information about how to select and maintain diagnostic-equipped 
locomotives for in-use testing. Notify the owner/operator that the 
presence of this diagnostic system affects their maintenance obligations 
under Sec. 1033.815. Except as specified in Sec. 1033.112, this 
section does not apply for diagnostics that you do not include in your 
emission-related maintenance instructions. The provisions of this 
section address diagnostic systems based on malfunction-indicator lights 
(MILs). You may ask to use other indicators instead of MILs.
    (a) The MIL must be readily visible to the operator. When the MIL 
goes on, it must display ``Check Emission Controls'' or a similar 
message that we approve. You may use sound in addition to the light 
signal.
    (b) To ensure that owner/operators consider MIL illumination 
seriously, you may not illuminate it for malfunctions that would not 
otherwise require maintenance. This section does not limit your ability 
to display other indicator lights or messages, as long as they are 
clearly distinguishable from MILs affecting the owner/operator's 
maintenance obligations under Sec. 1033.815.
    (c) Control when the MIL can go out. If the MIL goes on to show a 
malfunction, it must remain on during all later engine operation until 
servicing corrects the malfunction. If the engine is not serviced, but 
the malfunction does not recur during the next 24 hours, the MIL may 
stay off during later engine operation.
    (d) Record and store in computer memory any diagnostic trouble codes 
showing a malfunction that should illuminate the MIL. The stored codes 
must identify the malfunctioning system or component as uniquely as 
possible. Make these codes available through the data link connector as 
described in paragraph (e) of this section. You may store codes for 
conditions that do not turn on the MIL. The system must store a separate 
code to show when the diagnostic system is disabled (from malfunction or 
tampering). Provide instructions to the owner/operator regarding how to 
interpret malfunction codes.
    (e) Make data, access codes, and devices accessible. Make all 
required data accessible to us without any access codes or devices that 
only you can supply. Ensure that anyone servicing your locomotive can 
read and understand the diagnostic trouble codes stored in the onboard 
computer with generic tools and information.
    (f) Follow standard references for formats, codes, and connections.



Sec. 1033.112  Emission diagnostics for SCR systems.

    Engines equipped with SCR systems using separate reductant tanks 
must also meet the requirements of this section in addition to the 
requirements of Sec. 1033.110. This section does not apply for SCR 
systems using the engine's fuel as the reductant.
    (a) The diagnostic system must monitor reductant quality and tank 
levels and alert operators to the need to refill the reductant tank 
before it is empty, or to replace the reductant if it does

[[Page 20]]

not meet your concentration specifications. Unless we approve other 
alerts, use a malfunction-indicator light (MIL) as specified in Sec. 
1033.110 and an audible alarm. You do not need to separately monitor 
reductant quality if you include an exhaust NOX sensor (or 
other sensor) that allows you to determine inadequate reductant quality. 
However, tank level must be monitored in all cases.
    (b) Your onboard computer must record in nonvolatile computer memory 
all incidents of engine operation with inadequate reductant injection or 
reductant quality. It must record the total amount of operation without 
adequate reductant. It may total the operation by hours, work, or excess 
NOX emissions.



Sec. 1033.115  Other requirements.

    Locomotives that are required to meet the emission standards of this 
part must meet the requirements of this section. These requirements 
apply when the locomotive is new (for freshly manufactured or 
remanufactured locomotives) and continue to apply throughout the useful 
life.
    (a) Crankcase emissions. Crankcase emissions may not be discharged 
directly into the ambient atmosphere from any locomotive, except as 
follows:
    (1) Locomotives may discharge crankcase emissions to the ambient 
atmosphere if the emissions are added to the exhaust emissions (either 
physically or mathematically) during all emission testing. If you take 
advantage of this exception, you must do both of the following things:
    (i) Manufacture the locomotives so that all crankcase emissions can 
be routed into the applicable sampling systems specified in 40 CFR part 
1065, consistent with good engineering judgment.
    (ii) Account for deterioration in crankcase emissions when 
determining exhaust deterioration factors.
    (2) For purposes of this paragraph (a), crankcase emissions that are 
routed to the exhaust upstream of exhaust aftertreatment during all 
operation are not considered to be discharged directly into the ambient 
atmosphere.
    (b) Adjustable parameters. Locomotives that have adjustable 
parameters must meet all the requirements of this part for any 
adjustment in the approved adjustable range. You must specify in your 
application for certification the adjustable range of each adjustable 
parameter on a new locomotive or new locomotive engine to:
    (1) Ensure that safe locomotive operating characteristics are 
available within that range, as required by section 202(a)(4) of the 
Clean Air Act (42 U.S.C. 7521(a)(4)), taking into consideration the 
production tolerances.
    (2) Limit the physical range of adjustability to the maximum extent 
practicable to the range that is necessary for proper operation of the 
locomotive or locomotive engine.
    (c) Prohibited controls. You may not design or produce your 
locomotives 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 locomotive emits a noxious or toxic substance it would 
otherwise not emit that contributes to such an unreasonable risk.
    (d) Evaporative and refueling controls. For locomotives fueled with 
a volatile fuel you must design and produce them to minimize evaporative 
emissions during normal operation, including periods when the engine is 
shut down. You must also design and produce them to minimize the escape 
of fuel vapors during refueling. Hoses used to refuel gaseous-fueled 
locomotives may not be designed to be bled or vented to the atmosphere 
under normal operating conditions. No valves or pressure relief vents 
may be used on gaseous-fueled locomotives except as emergency safety 
devices that do not operate at normal system operating flows and 
pressures.
    (e) Altitude requirements. All locomotives must be designed to 
include features that compensate for changes in altitude so that the 
locomotives will comply with the applicable emission standards when 
operated at any altitude less than:
    (1) 7000 feet above sea level for line-haul locomotives.
    (2) 5500 feet above sea level for switch locomotives.
    (f) Defeat devices. You may not equip your locomotives with a defeat 
device.

[[Page 21]]

A defeat device is an auxiliary emission control device (AECD) that 
reduces the effectiveness of emission controls under conditions that the 
locomotive may reasonably be expected to encounter during normal 
operation and use.
    (1) This does not apply to AECDs you identify in your application 
for certification if any of the following is true:
    (i) The conditions of concern were substantially included in the 
applicable duty cycle test procedures described in subpart F of this 
part.
    (ii) You show your design is necessary to prevent locomotive damage 
or accidents.
    (iii) The reduced effectiveness applies only to starting the 
locomotive.
    (iv) The locomotive emissions when the AECD is functioning are at or 
below the notch caps of Sec. 1033.101.
    (2) This does not apply to AECDs related to hotel mode that conform 
to the specifications of this paragraph (f)(2). This provision is 
intended for AECDs that have the primary function of operating the 
engine at a different speed than would be done to generate the same 
propulsive power when not operating in hotel mode. Identify and describe 
these AECDs in your application for certification. We may allow the 
AECDs to modify engine calibrations where we determine that such 
modifications are environmentally beneficial or needed for proper engine 
function. You must obtain preliminary approval under Sec. 1033.210 
before incorporating such modifications. Otherwise, you must apply the 
same injection timing and intake air cooling strategies in hotel mode 
and non-hotel mode.
    (g) Idle controls. All new locomotives must be equipped with 
automatic engine stop/start as described in this paragraph (g). All new 
locomotives must be designed to allow the engine(s) to be restarted at 
least six times per day without causing engine damage that would affect 
the expected interval between remanufacturing. Note that it is a 
violation of 40 CFR 1068.101(b)(1) to circumvent the provisions of this 
paragraph (g).
    (1) Except as allowed by paragraph (g)(2) of this section, the stop/
start systems must shut off the main locomotive engine(s) after 30 
minutes of idling (or less).
    (2) Stop/start systems may restart or continue idling for the 
following reasons:
    (i) To prevent engine damage such as to prevent the engine coolant 
from freezing.
    (ii) To maintain air pressure for brakes or starter system, or to 
recharge the locomotive battery.
    (iii) To perform necessary maintenance.
    (iv) To otherwise comply with federal regulations.
    (3) You may ask to use alternate stop/start systems that will 
achieve equivalent idle control.
    (4) See Sec. 1033.201 for provisions that allow you to obtain a 
separate certificate for idle controls.
    (5) It is not considered circumvention to allow a locomotive to idle 
to heat or cool the cab, provided such heating or cooling is necessary.
    (h) Power meters. Tier 1 and later locomotives must be equipped with 
MW-hr meters (or the equivalent) consistent with the specifications of 
Sec. 1033.140.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59189, Oct. 8, 2008; 75 
FR 22982, Apr. 30, 2010]



Sec. 1033.120  Emission-related warranty requirements.

    (a) General requirements. Manufacturers/remanufacturers must warrant 
to the ultimate purchaser and each subsequent purchaser that the new 
locomotive, including all parts of its emission control system, meets 
two conditions:
    (1) It is designed, built, and equipped so it conforms at the time 
of sale to the ultimate purchaser with the requirements of this part.
    (2) It is free from defects in materials and workmanship that may 
keep it from meeting these requirements.
    (b) Warranty period. Except as specified in this paragraph, the 
minimum warranty period is one-third of the useful life. Your emission-
related warranty must be valid for at least as long as the minimum 
warranty periods listed in this paragraph (b) in MW-hrs of

[[Page 22]]

operation (or miles for Tier 0 locomotives not equipped with MW-hr 
meters) and years, whichever comes first. You may offer an emission-
related warranty more generous than we require. The emission-related 
warranty for the locomotive may not be shorter than any published 
warranty you offer without charge for the locomotive. Similarly, the 
emission-related warranty for any component may not be shorter than any 
published warranty you offer without charge for that component. If you 
provide an extended warranty to individual owners for any components 
covered in paragraph (c) of this section for an additional charge, your 
emission-related warranty must cover those components for those owners 
to the same degree. If the locomotive does not record MW-hrs, we base 
the warranty periods in this paragraph (b) only on years. The warranty 
period begins when the locomotive is placed into service, or back into 
service after remanufacture.
    (c) Components covered. The emission-related warranty covers all 
components whose failure would increase a locomotive's emissions of any 
regulated pollutant. This includes components listed in 40 CFR part 
1068, Appendix I, and components from any other system you develop to 
control emissions. The emission-related warranty covers the components 
you sell even if another company produces the component. Your emission-
related warranty does not need to cover components whose failure would 
not increase a locomotive's emissions of any regulated pollutant. For 
remanufactured locomotives, your emission-related warranty is required 
to cover only those parts that you supply or those parts for which you 
specify allowable part manufacturers. It does not need to cover used 
parts that are not replaced during the remanufacture.
    (d) Limited applicability. You may deny warranty claims under this 
section if the operator caused the problem through improper maintenance 
or use, as described in 40 CFR 1068.115.
    (e) Owners manual. Describe in the owners manual the emission-
related warranty provisions from this section that apply to the 
locomotive.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59189, Oct. 8, 2008; 75 
FR 22983, Apr. 30, 2010]



Sec. 1033.125  Maintenance instructions.

    Give the owner of each new locomotive written instructions for 
properly maintaining and using the locomotive, including the emission-
control system. Include in the instructions a notification that owners 
and operators must comply with the requirements of subpart I of this 
part 1033. The emission-related maintenance instructions also apply to 
any service accumulation on your emission-data locomotives, as described 
in Sec. 1033.245 and in 40 CFR part 1065. If you equip your locomotives 
with a diagnostic system that will detect significant malfunctions in 
their emission-control systems, specify the extent to which your 
emission-related maintenance instructions include such diagnostics.



Sec. 1033.130  Instructions for engine remanufacturing or engine installation.

    (a) If you do not complete assembly of the new locomotive (such as 
selling a kit that allows someone else to remanufacture a locomotive 
under your certificate), give the assembler instructions for completing 
assembly consistent with the requirements of this part. Include all 
information necessary to ensure that the locomotive will be assembled in 
its certified configuration.
    (b) Make sure these instructions have the following information:
    (1) Include the heading: ``Emission-related assembly instructions''
    (2) Describe any instructions necessary to make sure the assembled 
locomotive will operate according to design specifications in your 
application for certification.
    (3) Describe how to properly label the locomotive. This will 
generally include instructions to remove and destroy the previous Engine 
Emission Control Information label.
    (4) State one of the following as applicable:

[[Page 23]]

    (i) ``Failing to follow these instructions when remanufacturing a 
locomotive or locomotive engine violates federal law (40 CFR 
1068.105(b)), and may subject you to fines or other penalties as 
described in the Clean Air Act.''
    (ii) ``Failing to follow these instructions when installing this 
locomotive engine violates federal law (40 CFR 1068.105(b)), and may 
subject you to fines or other penalties as described in the Clean Air 
Act.''
    (c) You do not need installation instructions for locomotives you 
assemble.
    (d) Provide instructions in writing or in an equivalent format. For 
example, you may post instructions on a publicly available Web site for 
downloading or printing. If you do not provide the instructions in 
writing, explain in your application for certification how you will 
ensure that each assembler is informed of the assembly requirements.
    (e) Your emission-related assembly instructions may not include 
specifications for parts unrelated to emissions. For the basic 
mechanical parts listed in this paragraph (e), you may not specify a 
part manufacturer unless we determine that such a specification is 
necessary. You may include design specifications for such parts 
addressing the dimensions and material constraints as necessary. You may 
also specify a part number, as long you make it clear that alternate 
part suppliers may be used. This paragraph (e) covers the following 
parts or other parts we determine qualify as basic mechanical parts:
    (1) Intake and exhaust valves.
    (2) Intake and exhaust valve retainers.
    (3) Intake and exhaust valve springs.
    (4) Intake and exhaust valve rotators.
    (5) Oil coolers.



Sec. 1033.135  Labeling.

    As described in this section, each locomotive must have a label on 
the locomotive and a separate label on the engine. The label on the 
locomotive stays on the locomotive throughout its service life. It 
generally identifies the original certification of the locomotive, which 
is when it was originally manufactured for Tier 1 and later locomotives. 
The label on the engine is replaced each time the locomotive is 
remanufactured and identifies the most recent certification.
    (a) Serial numbers. At the point of original manufacture, assign 
each locomotive and each locomotive engine a serial number or other 
unique identification number and permanently affix, engrave, or stamp 
the number on the locomotive and engine in a legible way.
    (b) Locomotive labels. (1) Locomotive labels meeting the 
specifications of paragraph (b)(2) of this section must be applied as 
follows:
    (i) The manufacturer must apply a locomotive label at the point of 
original manufacture.
    (ii) The remanufacturer must apply a locomotive label at the point 
of original remanufacture, unless the locomotive was labeled by the 
original manufacturer.
    (iii) Any remanufacturer certifying a locomotive to an FEL or 
standard different from the previous FEL or standard to which the 
locomotive was previously certified must apply a locomotive label.
    (2) The locomotive label must meet all of the following criteria:
    (i) The label must be permanent and legible and affixed to the 
locomotive in a position in which it will remain readily visible. Attach 
it to a locomotive chassis part necessary for normal operation and not 
normally requiring replacement during the service life of the 
locomotive. You may not attach this label to the engine or to any 
equipment that is easily detached from the locomotive. Attach the label 
so that it cannot be removed without destroying or defacing the label. 
For Tier 0 and Tier 1 locomotives, the label may be made up of more than 
one piece, as long as all pieces are permanently attached to the 
locomotive.
    (ii) The label must be lettered in the English language using a 
color that contrasts with the background of the label.
    (iii) The label must include all the following information:
    (A) The label heading: ``ORIGINAL LOCOMOTIVE EMISSION CONTROL 
INFORMATION.'' Manufacturers/remanufacturers may add a subheading

[[Page 24]]

to distinguish this label from the engine label described in paragraph 
(c) of this section.
    (B) Full corporate name and trademark of the manufacturer (or 
remanufacturer).
    (C) The applicable engine family and configuration identification. 
In the case of locomotive labels applied by the manufacturer at the 
point of original manufacture, this will be the engine family and 
configuration identification of the certificate applicable to the 
freshly manufactured locomotive. In the case of locomotive labels 
applied by a remanufacturer during remanufacture, this will be the 
engine family and configuration identification of the certificate under 
which the remanufacture is being performed.
    (D) Date of original manufacture of the locomotive, as defined in 
Sec. 1033.901.
    (E) The standards/FELs to which the locomotive was certified and the 
following statement: ``THIS LOCOMOTIVE MUST COMPLY WITH THESE EMISSION 
LEVELS EACH TIME THAT IT IS REMANUFACTURED, EXCEPT AS ALLOWED BY 40 CFR 
1033.750.''
    (3) Label diesel-fueled locomotives near the fuel inlet to identify 
the allowable fuels, consistent with Sec. 1033.101. For example, Tier 4 
locomotives should be labeled ``ULTRA LOW SULFUR DIESEL FUEL ONLY''. You 
do not need to label Tier 3 and earlier locomotives certified for use 
with both LSD and ULSD.
    (c) Engine labels. (1) For engines not requiring aftertreatment 
devices, apply engine labels meeting the specifications of paragraph 
(c)(2) of this section once an engine has been assembled in its 
certified configuration. For engines that require aftertreatment 
devices, apply the label after the engine has been fully assembled, 
which may occur before installing the aftertreatment devices. These 
labels must be applied by:
    (i) The manufacturer at the point of original manufacture; and
    (ii) The remanufacturer at the point of each remanufacture 
(including the original remanufacture and subsequent remanufactures).
    (2) The engine label must meet all of the following criteria:
    (i) The label must be durable throughout the useful life of the 
engine, be legible and affixed to the engine in a position in which it 
will be readily visible after installation of the engine in the 
locomotive. Attach it to an engine part necessary for normal operation 
and not normally requiring replacement during the useful life of the 
locomotive. You may not attach this label to any equipment that is 
easily detached from the engine. Attach the label so it cannot be 
removed without destroying or defacing the label. The label may be made 
up of more than one piece, as long as all pieces are permanently 
attached to the same engine part.
    (ii) The label must be lettered in the English language using a 
color that contrasts with the background of the label.
    (iii) The label must include all the following information:
    (A) The label heading: ``ENGINE EMISSION CONTROL INFORMATION.'' 
Manufacturers/remanufacturers may add a subheading to distinguish this 
label from the locomotive label described in paragraph (b) of this 
section.
    (B) Full corporate name and trademark of the manufacturer/
remanufacturer.
    (C) Engine family and configuration identification as specified in 
the certificate under which the locomotive is being manufactured or 
remanufactured.
    (D) A prominent unconditional statement of compliance with U.S. 
Environmental Protection Agency regulations which apply to locomotives, 
as applicable:
    (1) ``This locomotive conforms to U.S. EPA regulations applicable to 
Tier 0+ switch locomotives.''
    (2) ``This locomotive conforms to U.S. EPA regulations applicable to 
Tier 0+ line-haul locomotives.''
    (3) ``This locomotive conforms to U.S. EPA regulations applicable to 
Tier 1+ locomotives.''
    (4) ``This locomotive conforms to U.S. EPA regulations applicable to 
Tier 2+ locomotives.''
    (5) ``This locomotive conforms to U.S. EPA regulations applicable to 
Tier 3 switch locomotives.''

[[Page 25]]

    (6) ``This locomotive conforms to U.S. EPA regulations applicable to 
Tier 3 line-haul locomotives.''
    (7) ``This locomotive conforms to U.S. EPA regulations applicable to 
Tier 4 switch locomotives.''
    (8) ``This locomotive conforms to U.S. EPA regulations applicable to 
Tier 4 line-haul locomotives.''
    (E) The useful life of the locomotive.
    (F) The standards/FELS to which the locomotive was certified.
    (iv) You may include other critical operating instructions such as 
specifications for adjustments or reductant use for SCR systems.
    (d) You may add information to the emission control information 
label as follows:
    (1) You may identify other emission standards that the engine/
locomotive meets or does not meet (such as international standards). You 
may include this information by adding it to the statement we specify or 
by including a separate statement.
    (2) You may add other information to ensure that the locomotive will 
be properly maintained and used.
    (3) You may add appropriate features to prevent counterfeit labels. 
For example, you may include the engine's unique identification number 
on the label.
    (e) You may ask us to approve modified labeling requirements in this 
part 1033 if you show that it is necessary or appropriate. We will 
approve your request if your alternate label is consistent with the 
requirements of this part.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59189, Oct. 8, 2008]



Sec. 1033.140  Rated power.

    This section describes how to determine the rated power of a 
locomotive for the purposes of this part.
    (a) A locomotive configuration's rated power is the maximum brake 
power point on the nominal power curve for the locomotive configuration, 
as defined in this section. See Sec. 1033.901 for the definition of 
brake power. Round the power value to the nearest whole horsepower. 
Generally, this will be the brake power of the engine in notch 8.
    (b) The nominal power curve of a locomotive configuration is its 
maximum available brake power at each possible operator demand setpoint 
or ``notch''. See 40 CFR 1065.1001 for the definition of operator 
demand. The maximum available power at each operator demand setpoint is 
based on your design and production specifications for that locomotive. 
The nominal power curve does not include any operator demand setpoints 
that are not achievable during in-use operation. For example, for a 
locomotive with only eight discrete operator demand setpoints, or 
notches, the nominal power curve would be a series of eight power points 
versus notch, rather than a continuous curve.
    (c) The nominal power curve must be within the range of the actual 
power curves of production locomotives considering normal production 
variability. If after production begins it is determined that your 
nominal power curve does not represent production locomotives, we may 
require you to amend your application for certification under Sec. 
1033.225.
    (d) For the purpose of determining useful life, you may need to use 
a rated power based on power other than brake power according to the 
provisions of this paragraph (d). The useful life must be based on the 
power measured by the locomotive's megawatt-hour meter. For example, if 
your megawatt-hour meter reads and records the electrical work output of 
the alternator/generator rather than the brake power of the engine, and 
the power output of the alternator/generator at notch 8 is 4000 
horsepower, calculate your useful life as 30,000MW-hrs (7.5 x 4000).



Sec. 1033.150  Interim provisions.

    The provisions of this section apply instead of other provisions of 
this part for a limited time. This section describes when these 
provisions apply.
    (a) Early availability of Tier 0, Tier 1, or Tier 2 systems. Except 
as specified in paragraph (a)(2) of this section, for model years 2008 
and 2009, you may remanufacture locomotives to meet the applicable 
standards in 40 CFR part 92 only if no remanufacture system has been 
certified to meet the standards of

[[Page 26]]

this part and is available at a reasonable cost at least 90 days prior 
to the completion of the remanufacture as specified in paragraph (a)(3) 
of this section. This same provision continues to apply after 2009, but 
only for Tier 2 locomotives. Note that remanufacturers may certify 
remanufacturing systems that will not be available at a reasonable cost; 
however such certification does not trigger the requirements of this 
paragraph (a).
    (1) For the purpose of this paragraph (a), ``available at a 
reasonable cost'' means available for use where all of the following are 
true:
    (i) The total incremental cost to the owner and operators of the 
locomotive due to meeting the new standards (including initial hardware, 
increased fuel consumption, and increased maintenance costs) during the 
useful life of the locomotive is less than $250,000, adjusted as 
specified in paragraph (a)(4)(i) of this section.
    (ii) The initial incremental hardware costs are reasonably related 
to the technology included in the remanufacturing system and are less 
than $125,000, adjusted as specified in paragraph (a)(4)(i) of this 
section.
    (iii) The remanufactured locomotive will have reliability throughout 
its useful life that is similar to the reliability the locomotive would 
have had if it had been remanufactured without the certified 
remanufacture system.
    (iv) The remanufacturer must demonstrate at the time of 
certification that the system meets the requirements of this paragraph 
(a)(1).
    (v) The system does not generate or use emission credits.
    (2) The number of locomotives that each railroad must remanufacture 
under this paragraph (a) is capped as follows:
    (i) For the period October 3, 2008 to December 31, 2008, the maximum 
number of locomotives that a railroad must remanufacture under this 
paragraph (a) is 50 percent of the total number of the railroad's 
locomotives that are remanufactured during this period under this part 
or 40 CFR part 92. Include in the calculation both locomotives you own 
and locomotives you lease.
    (ii) For the period January 1, 2009 to December 31, 2009, the 
maximum number of locomotives that a railroad must remanufacture under 
this paragraph (a) is 70 percent of the total number of the railroad's 
locomotives that are remanufactured during this period under this part 
or 40 CFR part 92. Include in the calculation both locomotives you own 
and locomotives you lease.
    (3) Remanufacturers applying for certificates under this paragraph 
(a) are responsible to notify owner/operators (and other customers as 
applicable) that they have requested such certificates. The notification 
should occur at the same time that the remanufacturer submits its 
application, and should include a description of the remanufacturing 
system, price, expected incremental operating costs, and draft copies of 
your installation and maintenance instructions. The system is considered 
to be available for a customer 120 days after this notification, or 90 
days after the certificate is issued, whichever is later. Where we issue 
a certificate of conformity under this part based on carryover data from 
an engine family that we previously considered available for the 
configuration, the system is considered to be available when we issue 
the certificate.
    (4) Estimate costs as follows:
    (i) The cost limits described in paragraph (a)(1) of this section 
are specified in terms of 2007 dollars. Adjust these values for future 
years according to the following equation:

Actual Limit = (2007 Limit) x [(0.6000) x (Commodity Index) + (0.4000) x 
    (Earnings Index)]

Where:

2007 Limit = The value specified in paragraph (a)(1) of this section 
          ($250,000 or $125,000).
Commodity Index = The U.S. Bureau of Labor Statistics Producer Price 
Index for Industrial Commodities Less Fuel (Series WPU03T15M05) for the 
month prior to the date you submit your application divided by 173.1.
Earnings Index = The U.S. Bureau of Labor Statistics Estimated Average 
Hourly Earnings of Production Workers for Durable Manufacturing (Series 
CES3100000008) for the month prior to the date you submit your 
application divided by 18.26.

    (ii) Calculate all costs in current dollars (for the month prior to 
the date you submit your application). Calculate fuel costs based on a 
fuel price

[[Page 27]]

adjusted by the Association of American Railroads' monthly railroad fuel 
price index (P), which is available at https://www.aar.org//media/AAR/
RailCostIndexes/Index--MonthlyFuelPrices.ashx. (Use the value for the 
column in which P equals 539.8 for November 2007.) Calculate a new fuel 
price using the following equation:

Fuel Price = ($2.76 per gallon) x (P/539.8)

    (b) Idle controls. A locomotive equipped with an automatic engine 
stop/start system that was originally installed before January 1, 2009 
and that conforms to the requirements of Sec. 1033.115(g) is deemed to 
be covered by a certificate of conformity with respect to the 
requirements of Sec. 1033.115(g). Note that the provisions of subpart C 
of this part also allow you to apply for a conventional certificate of 
conformity for such systems.
    (c) Locomotive labels for transition to new standards. This 
paragraph (c) applies when you remanufacture a locomotive that was 
previously certified under 40 CFR part 92. You must remove the old 
locomotive label and replace it with the locomotive label specified in 
Sec. 1033.135.
    (d) Small manufacturer/remanufacturer provisions. The production-
line testing requirements and in-use testing requirements of this part 
do not apply until January 1, 2013 for manufacturers/remanufacturers 
that qualify as small manufacturers under Sec. 1033.901.
    (e) Producing switch locomotives using certified nonroad engines. 
You may use the provisions of this paragraph (e) to produce any number 
of freshly manufactured or refurbished switch locomotives in model years 
2008 through 2017. Locomotives produced under this paragraph (e) are 
exempt from the standards and requirements of this part and 40 CFR part 
92 subject to the following provisions:
    (1) All of the engines on the switch locomotive must be covered by a 
certificate of conformity issued under 40 CFR part 89 or 1039 for model 
year 2008 or later (or earlier model years if the same standards applied 
as in 2008). Engines over 750 hp certified to the Tier 4 standards for 
non-generator set engines are not eligible for this allowance after 
2014.
    (2) You must reasonably project that more of the engines will be 
sold and used for non-locomotive use than for use in locomotives.
    (3) You may not generate or use locomotive credits under this part 
for these locomotives.
    (4) Include the following statement on a permanent locomotive label: 
``THIS LOCOMOTIVE WAS CERTIFIED UNDER 40 CFR 1033.150(e). THE ENGINES 
USED IN THIS LOCOMOTIVE ARE SUBJECT TO REQUIREMENTS OF 40 CFR PARTS 1039 
(or 89) AND 1068.''
    (5) The rebuilding requirements of 40 CFR part 1068 apply when 
remanufacturing engines used in these locomotives.
    (f) In-use compliance limits. For purposes of determining compliance 
other than for certification or production-line testing, calculate the 
applicable in-use compliance limits by adjusting the applicable 
standards/FELs. The PM adjustment applies only for model year 2017 and 
earlier locomotives and does not apply for locomotives with a PM FEL 
higher than 0.03 g/bhp-hr. The NOX adjustment applies only 
for model year 2017 and earlier locomotives and does not apply for 
locomotives with a NOX FEL higher than 2.0 g/bhp-hr. Add the 
applicable adjustments in Tables 1 or 2 of this section (which follow) 
to the otherwise applicable standards (or FELs) and notch caps. You must 
specify during certification which add-ons, if any, will apply for your 
locomotives.

  Table 1 to Sec.  1033.150--In-use Adjustments for Tier 4 Locomotives
------------------------------------------------------------------------
                                           In-use adjustments (g/bhp-hr)
                                         -------------------------------
                                          For model year  For model year
  Fraction of useful life already used       2017 and        2017 and
                                          earlier Tier 4  earlier Tier 4
                                          NOX  standards   PM standards
------------------------------------------------------------------------
0 < MW-hrs <= 50% of UL.................             0.7            0.01

[[Page 28]]

 
50 < MW-hrs <= 75% of UL................             1.0            0.01
MW-hrs  75% of UL............             1.3            0.01
------------------------------------------------------------------------


   Table 2 to Sec.  1033.150--Optional In-Use Adjustments for Tier 4
                               Locomotives
------------------------------------------------------------------------
                                         In-use adjustments (g/bhp-hr)
                                     -----------------------------------
                                       For model year    For model year
Fraction of useful life already used  2017 and earlier  2017 and earlier
                                         Tier 4 NOX         Tier 4 PM
                                          standards         standards
------------------------------------------------------------------------
0 < MW-hrs <= 50% of UL.............               0.2              0.03
50 < MW-hrs <= 75% of UL............               0.3              0.03
MW-hrs  75% of UL........               0.4              0.03
------------------------------------------------------------------------

    (g) Optional interim Tier 4 compliance provisions for NOX 
emissions. For model years 2015 through 2022, manufacturers may choose 
to certify some or all of their Tier 4 line-haul engine families 
according to the optional compliance provisions of this paragraph (g). 
The following provisions apply to all locomotives in those families:
    (1) The provisions of this paragraph (g) apply instead of the 
deterioration factor requirements of Sec. Sec. 1033.240 and 1033.245 
for NOX emissions. You must certify that the locomotives in 
the engine family will conform to the requirements of this paragraph (g) 
for their full useful lives.
    (2) The applicable NOX emission standard for locomotives 
certified under this paragraph (g) is:
    (i) 1.3 g/bhp-hr for locomotives that have accumulated less than 50 
hours of operation.
    (ii) 1.3 plus 0.6 g/bhp-hr for locomotives that have accumulated 50 
hours or more of operation.
    (3) The engine family may not generate NOX emission 
credits.
    (4) The design certification provisions of Sec. 1033.240(c) do not 
apply for these locomotives for the next remanufacture.
    (5) Manufacturers must comply with the production-line testing 
program in subpart D of this part for these engine families or the 
following optional program:
    (i) You are not required to test locomotives in the family under 
subpart D of this part if you comply with the requirements of this 
paragraph (g)(5).
    (ii) Test the locomotives as specified in subpart E of this part, 
with the following exceptions:
    (A) The minimum test sample size is one percent of the number of 
locomotives in the family or five, whichever is less.
    (B) The locomotives must be tested after they have accumulated 50 
hours or more of operation but before they have reached 50 percent of 
their useful life.
    (iii) The standards in this part for pollutants other than 
NOX apply as specified for testing conducted under this 
optional program.
    (6) The engine family may use NOX emission credits to 
comply with this paragraph (g). However, a 1.5 g/bhp-hr NOX 
FEL cap applies for engine families certified under this paragraph (g). 
The applicable standard for locomotives that have accumulated 50 hours 
or more of operation is the FEL plus 0.6 g/bhp-hr.
    (7) The in-use NOX add-ons specified in paragraph (f) of 
this section do not apply for these locomotives.
    (8) All other provisions of this part apply to such locomotives, 
except as specified otherwise in this paragraph (g).
    (h) Test procedures. You are generally required to use the test 
procedures

[[Page 29]]

specified in subpart F of this part (including the applicable test 
procedures in 40 CFR part 1065). As specified in this paragraph (h), you 
may use a combination of the test procedures specified in this part and 
the test procedures specified in 40 CFR part 92 prior to January 1, 
2015. After this date, you must use only the test procedures specified 
in this part.
    (1) Prior to January 1, 2015, you may ask to use some or all of the 
procedures specified in 40 CFR part 92 for locomotives certified under 
this part 1033.
    (2) If you ask to rely on a combination of procedures under this 
paragraph (h), we will approve your request only if you show us that it 
does not affect your ability to demonstrate compliance with the 
applicable emission standards. Generally this requires that the combined 
procedures would result in emission measurements at least as high as 
those that would be measured using the procedures specified in this 
part. Alternatively, you may demonstrate that the combined effects of 
the different procedures is small relative to your compliance margin 
(the degree to which your emissions are below the applicable standards).
    (i) Certification testing. Prior to model year 2014, you may use the 
simplified steady-state engine test procedure specified in this 
paragraph (i) for certification testing. The normal certification 
procedures and engine testing procedures apply, except as specified in 
this paragraph (i).
    (1) Use good engineering judgment to operate the engine consistent 
with its expected operation in the locomotive, to the extent practical. 
You are not required to exactly replicate the transient behavior of the 
engine.
    (2) You may delay sampling during notch transition for up to 20 
seconds after you begin the notch change.
    (3) We may require you provide additional information in your 
application for certification to support the expectation that production 
locomotives will meet all applicable emission standards when tested as 
locomotives.
    (4) You may not use this simplified procedure for production-line or 
in-use testing.
    (j) Administrative requirements. For model years 2008 and 2009, you 
may use a combination of the administrative procedures specified in this 
part and the test procedures specified in 40 CFR part 92. For example, 
this would allow you to use the certification procedures of 40 CFR part 
92 to apply for certificates under this part 1033.
    (k) Test fuels. Testing performed during calendar years 2008 and 
2009 may be performed using test fuels that meet the specifications of 
40 CFR 92.113. If you do, adjust PM emissions downward by 0.04 g/bhp-hr 
to account for the difference in sulfur content of the fuel.
    (l) Refurbished switch locomotives. In 2008 and 2009 remanufactured 
Tier 0 switch locomotives that are deemed to be refurbished may be 
certified as remanufactured switch locomotives under 40 CFR part 92.
    (m) Assigned deterioration factors. The provisions of this paragraph 
(m) apply for Tier 0 and Tier 1 locomotives to the standards of this 
part during model years 2008 or 2009. Remanufacturers certifying such 
locomotives to the standards of this part during these model years may 
use an assigned deterioration factor of 0.03 g/bhp-hr for PM and an 
assigned deterioration factor of zero for other pollutants. For purposes 
of determining compliance other than for certification or production-
line testing, calculate the applicable in-use compliance limits for 
these locomotives by adjusting the applicable PM standards/FELs upward 
by 0.03 g/bhp-hr.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59189, Oct. 8, 2008; 74 
FR 8423, Feb. 24, 2009; 75 FR 22983, Apr. 30, 2010; 75 FR 68460, Nov. 8, 
2010]



                  Subpart C_Certifying Engine Families



Sec. 1033.201  General requirements for obtaining a certificate of conformity.

    Certification is the process by which you demonstrate to us that 
your freshly manufactured or remanufactured locomotives will meet the 
applicable emission standards throughout their useful lives (explaining 
to us how you plan to manufacture or remanufacture locomotives, and 
providing test data showing that such locomotives will comply with all 
applicable emission

[[Page 30]]

standards). Anyone meeting the definition of manufacturer in Sec. 
1033.901 may apply for a certificate of conformity for freshly 
manufactured locomotives. Anyone meeting the definition of 
remanufacturer in Sec. 1033.901 may apply for a certificate of 
conformity for remanufactured locomotives.
    (a) You must send us a separate application for a certificate of 
conformity for each engine family. A certificate of conformity is valid 
starting with the indicated effective date, but it is not valid for any 
production after December 31 of the model year for which it is issued. 
No certificate will be issued after December 31 of the model year.
    (b) The application must contain all the information required by 
this part and must not include false or incomplete statements or 
information (see Sec. 1033.255).
    (c) We may ask you to include less information than we specify in 
this subpart, as long as you maintain all the information required by 
Sec. 1033.250.
    (d) You must use good engineering judgment for all decisions related 
to your application (see 40 CFR 1068.5).
    (e) An authorized representative of your company must approve and 
sign the application.
    (f) See Sec. 1033.255 for provisions describing how we will process 
your application.
    (g) We may require you to deliver your test locomotives to a 
facility we designate for our testing (see Sec. 1033.235(c)).
    (h) By applying for a certificate of conformity, you are accepting 
responsibility for the in-use emission performance of all properly 
maintained and used locomotives covered by your certificate. This 
responsibility applies without regard to whether you physically 
manufacture or remanufacture the entire locomotive. If you do not 
physically manufacture or remanufacture the entire locomotive, you must 
take reasonable steps (including those specified by this part) to ensure 
that the locomotives produced under your certificate conform to the 
specifications of your application for certification. Note that this 
paragraph does not limit any liability under this part or the Clean Air 
Act for entities that do not obtain certificates. This paragraph also 
does not prohibit you from making contractual arrangements with 
noncertifiers related to recovering damages for noncompliance.
    (i) The provisions of this subpart describe how to obtain a 
certificate that covers all standards and requirements. Manufacturer/
remanufacturers may ask to obtain a certificate of conformity that does 
not cover the idle control requirements of Sec. 1033.115 or one that 
only covers the idle control requirements of Sec. 1033.115. 
Remanufacturers obtaining such partial certificates must include a 
statement in their installation instructions that two certificates and 
labels are required for a locomotive to be in a fully certified 
configuration. We may modify the certification requirements for 
certificates that will only cover idle control systems.



Sec. 1033.205  Applying for a certificate of conformity.

    (a) Send the Designated Compliance Officer a complete application 
for each engine family for which you are requesting a certificate of 
conformity.
    (b) [Reserved]
    (c) You must update and correct your application to accurately 
reflect your production, as described in Sec. 1033.225.
    (d) Include the following information in your application:
    (1) A description of the basic engine design including, but not 
limited to, the engine family specifications listed in Sec. 1033.230. 
For freshly manufactured locomotives, a description of the basic 
locomotive design. For remanufactured locomotives, a description of the 
basic locomotive designs to which the remanufacture system will be 
applied. Include in your description, a list of distinguishable 
configurations to be included in the engine family. Note whether you are 
requesting a certificate that will or will not cover idle controls.
    (2) An explanation of how the emission control system operates, 
including detailed descriptions of:
    (i) All emission control system components.
    (ii) Injection or ignition timing for each notch (i.e., degrees 
before or after top-dead-center), and any functional

[[Page 31]]

dependence of such timing on other operational parameters (e.g., engine 
coolant temperature).
    (iii) Each auxiliary emission control device (AECD).
    (iv) All fuel system components to be installed on any production or 
test locomotives.
    (v) Diagnostics.
    (3) A description of the test locomotive.
    (4) A description of the test equipment and fuel used. Identify any 
special or alternate test procedures you used.
    (5) A description of the operating cycle and the period of operation 
necessary to accumulate service hours on the test locomotive and 
stabilize emission levels. You may also include a Green Engine Factor 
that would adjust emissions from zero-hour engines to be equivalent to 
stabilized engines.
    (6) A description of all adjustable operating parameters (including, 
but not limited to, injection timing and fuel rate), including the 
following:
    (i) The nominal or recommended setting and the associated production 
tolerances.
    (ii) The intended adjustable range, and the physically adjustable 
range.
    (iii) The limits or stops used to limit adjustable ranges.
    (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 the most effective means 
possible of preventing adjustment of parameters to settings outside your 
specified adjustable ranges on in-use engines.
    (7) Projected U.S. production information for each configuration. If 
you are projecting substantially different sales of a configuration than 
you had previously, we may require you to explain why you are projecting 
the change.
    (8)(i) All test data you obtained for each test engine or 
locomotive. As described in Sec. 1033.235, we may allow you to 
demonstrate compliance based on results from previous emission tests, 
development tests, or other testing information. Include data for NOx, 
PM, HC, CO, and CO2.
    (ii) Report measured CO2, N2O, and 
CH4 as described in Sec. 1033.235. Small manufacturers/
remanufacturers may omit reporting N2O and CH4.
    (9) The intended deterioration factors for the engine family, in 
accordance with Sec. 1033.245. If the deterioration factors for the 
engine family were developed using procedures that we have not 
previously approved, you should request preliminary approval under Sec. 
1033.210.
    (10) The intended useful life period for the engine family, in 
accordance with Sec. 1033.101(g). If the useful life for the engine 
family was determined using procedures that we have not previously 
approved, you should request preliminary approval under Sec. 1033.210.
    (11) Copies of your proposed emission control label(s), maintenance 
instructions, and installation instructions (where applicable).
    (12) An unconditional statement declaring that all locomotives 
included in the engine family comply with all requirements of this part 
and the Clean Air Act.
    (e) If we request it, you must supply such additional information as 
may be required to evaluate the application.
    (f) Provide the information to read, record, and interpret all the 
information broadcast by a locomotive's onboard computers and electronic 
control units. State that, upon request, you will give us any hardware, 
software, or tools we would need to do this. You may reference any 
appropriate publicly released standards that define conventions for 
these messages and parameters. Format your information consistent with 
publicly released standards.
    (g) Include the information required by other subparts of this part. 
For example, include the information required by Sec. 1033.725 if you 
participate in the ABT program.
    (h) Include other applicable information, such as information 
specified in this part or part 1068 of this chapter related to requests 
for exemptions.
    (i) Name an agent for service located in the United States. Service 
on this agent constitutes service on you or any of your officers or 
employees for any

[[Page 32]]

action by EPA or otherwise by the United States related to the 
requirements of this part.
    (j) For imported locomotives, we may require you to describe your 
expected importation process.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59190, Oct. 8, 2008; 74 
FR 56508, Oct. 30, 2008]



Sec. 1033.210  Preliminary approval.

    (a) If you send us information before you finish the application, we 
will review it and make any appropriate determinations for questions 
related to engine family definitions, auxiliary emission-control 
devices, deterioration factors, testing for service accumulation, 
maintenance, and useful lives.
    (b) Decisions made under this section are considered to be 
preliminary approval, subject to final review and approval. We will 
generally not reverse a decision where we have given you preliminary 
approval, unless we find new information supporting a different 
decision.
    (c) If you request preliminary approval related to the upcoming 
model year or the model year after that, we will make best-efforts to 
make the appropriate determinations as soon as practicable. We will 
generally not provide preliminary approval related to a future model 
year more than three years ahead of time.
    (d) You must obtain preliminary approval for your plan to develop 
deterioration factors prior to the start of any service accumulation to 
be used to develop the factors.



Sec. 1033.220  Amending maintenance instructions.

    You may amend your emission-related maintenance instructions after 
you submit your application for certification, as long as the amended 
instructions remain consistent with the provisions of Sec. 1033.125. 
You must send the Designated Compliance Officer a request to amend your 
application for certification for an engine family if you want to change 
the emission-related maintenance instructions in a way that could affect 
emissions. In your request, describe the proposed changes to the 
maintenance instructions. If owners/operators follow the original 
maintenance instructions rather than the newly specified maintenance, 
this does not allow you to disqualify those locomotives from in-use 
testing or deny a warranty claim.
    (a) If you are decreasing or eliminating any of the specified 
maintenance, you may distribute the new maintenance instructions to your 
customers 30 days after we receive your request, unless we disapprove 
your request. This would generally include replacing one maintenance 
step with another. We may approve a shorter time or waive this 
requirement.
    (b) If your requested change would not decrease the specified 
maintenance, you may distribute the new maintenance instructions anytime 
after you send your request. For example, this paragraph (b) would cover 
adding instructions to increase the frequency of filter changes for 
locomotives in severe-duty applications.
    (c) You do not need to request approval if you are making only minor 
corrections (such as correcting typographical mistakes), clarifying your 
maintenance instructions, or changing instructions for maintenance 
unrelated to emission control. We may ask you to send us copies of 
maintenance instructions revised under this paragraph (c).

[73 FR 37197, June 30, 2008, as amended at 75 FR 22983, Apr. 30, 2010]



Sec. 1033.225  Amending applications for certification

    Before we issue you a certificate of conformity, you may amend your 
application to include new or modified locomotive configurations, 
subject to the provisions of this section. After we have issued your 
certificate of conformity, you may send us an amended application 
requesting that we include new or modified locomotive configurations 
within the scope of the certificate, subject to the provisions of this 
section. You must also amend your application if any changes occur with 
respect to any information that is included or should be included in 
your application. For example, you must

[[Page 33]]

amend your application if you determine that your actual production 
variation for an adjustable parameter exceeds the tolerances specified 
in your application.
    (a) You must amend your application before you take either of the 
following actions:
    (1) Add a locomotive configuration to an engine family. In this 
case, the locomotive added must be consistent with other locomotives in 
the engine family with respect to the criteria listed in Sec. 1033.230. 
For example, you must amend your application if you want to produce 12-
cylinder versions of the 16-cylinder locomotives you described in your 
application.
    (2) Change a locomotive already included in an engine family in a 
way that may affect emissions, or change any of the components you 
described in your application for certification. This includes 
production and design changes that may affect emissions any time during 
the locomotive's lifetime. For example, you must amend your application 
if you want to change a part supplier if the part was described in your 
original application and is different in any material respect than the 
part you described.
    (3) Modify an FEL for an engine family as described in paragraph (f) 
of this section.
    (b) To amend your application for certification, send the relevant 
information to the Designated Compliance Officer.
    (1) Describe in detail the addition or change in the locomotive 
model or configuration you intend to make.
    (2) Include engineering evaluations or data showing that the amended 
engine family complies with all applicable requirements. You may do this 
by showing that the original emission-data locomotive is still 
appropriate for showing that the amended family complies with all 
applicable requirements.
    (3) If the original emission-data locomotive for the engine family 
is not appropriate to show compliance for the new or modified 
locomotive, include new test data showing that the new or modified 
locomotive meets the requirements of this part.
    (c) We may ask for more test data or engineering evaluations. You 
must give us these within 30 days after we request them.
    (d) For engine families already covered by a certificate of 
conformity, we will determine whether the existing certificate of 
conformity covers your new or modified locomotive. You may ask for a 
hearing if we deny your request (see Sec. 1033.920).
    (e) For engine families already covered by a certificate of 
conformity, you may start producing the new or modified locomotive 
anytime after you send us your amended application, before we make a 
decision under paragraph (d) of this section. However, if we determine 
that the affected locomotives do not meet applicable requirements, we 
will notify you to cease production of the locomotives and may require 
you to recall the locomotives at no expense to the owner. Choosing to 
produce locomotives under this paragraph (e) is deemed to be consent to 
recall all locomotives that we determine do not meet applicable emission 
standards or other requirements and to remedy the nonconformity at no 
expense to the owner. If you do not provide information required under 
paragraph (c) of this section within 30 days after we request it, you 
must stop producing the new or modified locomotives.
    (f) You may ask us to approve a change to your FEL in certain cases 
after the start of production. The changed FEL may not apply to 
locomotives you have already introduced into U.S. commerce, except as 
described in this paragraph (f). If we approve a changed FEL after the 
start of production, you must include the new FEL on the emission 
control information label for all locomotives produced after the change. 
You may ask us to approve a change to your FEL in the following cases:
    (1) You may ask to raise your FEL for your engine family at any 
time. In your request, you must show that you will still be able to meet 
the emission standards as specified in subparts B and H of this part. If 
you amend your application by submitting new test data to include a 
newly added or modified locomotive, as described in paragraph (b)(3) of 
this section, use the appropriate FELs with corresponding

[[Page 34]]

production volumes to calculate emission credits for the model year, as 
described in subpart H of this part. In all other circumstances, you 
must use the higher FEL for the entire family to calculate emission 
credits under subpart H of this part.
    (2) You may ask to lower the FEL for your emission family only if 
you have test data from production locomotives showing that emissions 
are below the proposed lower FEL. The lower FEL applies only to engines 
or fuel-system components you produce after we approve the new FEL. Use 
the appropriate FELs with corresponding production volumes to calculate 
emission credits for the model year, as described in subpart H of this 
part.

[73 FR 37197, June 30, 2008, as amended at 75 FR 22983, Apr. 30, 2010]



Sec. 1033.230  Grouping locomotives into engine families.

    (a) Divide your product line into engine families of locomotives 
that are expected to have similar emission characteristics throughout 
the useful life. Your engine family is limited to a single model year. 
Freshly manufactured locomotives may not be included in the same engine 
family as remanufactured locomotives, except as allowed by paragraph (f) 
of this section. Paragraphs (b) and (c) of this section specify default 
criteria for dividing locomotives into engine families. Paragraphs (d) 
and (e) of this section allow you deviate from these defaults in certain 
circumstances.
    (b) This paragraph (b) applies for all locomotives other than Tier 0 
locomotives. Group locomotives in the same engine family if they are the 
same in all the following aspects:
    (1) The combustion cycle (e.g., diesel cycle).
    (2) The type of engine cooling employed and procedure(s) employed to 
maintain engine temperature within desired limits (thermostat, on-off 
radiator fan(s), radiator shutters, etc.).
    (3) The nominal bore and stroke dimensions.
    (4) The approximate intake and exhaust event timing and duration 
(valve or port).
    (5) The location of the intake and exhaust valves (or ports).
    (6) The size of the intake and exhaust valves (or ports).
    (7) The overall injection or ignition timing characteristics (i.e., 
the deviation of the timing curves from the optimal fuel economy timing 
curve must be similar in degree).
    (8) The combustion chamber configuration and the surface-to-volume 
ratio of the combustion chamber when the piston is at top dead center 
position, using nominal combustion chamber dimensions.
    (9) The location of the piston rings on the piston.
    (10) The method of air aspiration (turbocharged, supercharged, 
naturally aspirated, Roots blown).
    (11) The general performance characteristics of the turbocharger or 
supercharger (e.g., approximate boost pressure, approximate response 
time, approximate size relative to engine displacement).
    (12) The type of air inlet cooler (air-to-air, air-to-liquid, 
approximate degree to which inlet air is cooled).
    (13) The intake manifold induction port size and configuration.
    (14) The type of fuel and fuel system configuration.
    (15) The configuration of the fuel injectors and approximate 
injection pressure.
    (16) The type of fuel injection system controls (i.e., mechanical or 
electronic).
    (17) The type of smoke control system.
    (18) The exhaust manifold port size and configuration.
    (19) The type of exhaust aftertreatment system (oxidation catalyst, 
particulate trap), and characteristics of the aftertreatment system 
(catalyst loading, converter size vs. engine size).
    (c) Group Tier 0 locomotives in the same engine family if they are 
the same in all the following aspects:
    (1) The combustion cycle (e.g., diesel cycle).
    (2) The type of engine cooling employed and procedure(s) employed to 
maintain engine temperature within desired limits (thermostat, on-off 
radiator fan(s), radiator shutters, etc.).
    (3) The approximate bore and stroke dimensions.

[[Page 35]]

    (4) The approximate location of the intake and exhaust valves (or 
ports).
    (5) The combustion chamber general configuration and the approximate 
surface-to-volume ratio of the combustion chamber when the piston is at 
top dead center position, using nominal combustion chamber dimensions.
    (6) The method of air aspiration (turbocharged, supercharged, 
naturally aspirated, Roots blown).
    (7) The type of air inlet cooler (air-to-air, air-to-liquid, 
approximate degree to which inlet air is cooled).
    (8) The type of fuel and general fuel system configuration.
    (9) The general configuration of the fuel injectors and approximate 
injection pressure.
    (10) The type of fuel injection system control (electronic or 
mechanical).
    (d) You may subdivide a group of locomotives that is identical under 
paragraph (b) or (c) of this section into different engine families if 
you show the expected emission characteristics are different during the 
useful life. This allowance also covers locomotives for which only 
calculated emission rates differ, such as locomotives with and without 
energy-saving design features. For the purposes of determining whether 
an engine family is a small engine family in Sec. 1033.405(a)(2), we 
will consider the number of locomotives that could have been classed 
together under paragraph (b) or (c) of this section, instead of the 
number of locomotives that are included in a subdivision allowed by this 
paragraph (d).
    (e) In unusual circumstances, you may group locomotives that are not 
identical with respect to the things listed in paragraph (b) or (c) of 
this section in the same engine family if you show that their emission 
characteristics during the useful life will be similar.
    (f) During the first six calendar years after a new tier of 
standards becomes applicable, remanufactured engines/locomotives may be 
included in the same engine family as freshly manufactured locomotives, 
provided the same engines and emission controls are used for locomotive 
models included in the engine family.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59190, Oct. 8, 2008]



Sec. 1033.235  Emission testing required for certification.

    This section describes the emission testing you must perform to show 
compliance with the emission standards in Sec. 1033.101.
    (a) Select an emission-data locomotive (or engine) from each engine 
family for testing. It may be a low mileage locomotive, or a development 
engine (that is equivalent in design to the engines of the locomotives 
being certified), or another low hour engine. Use good engineering 
judgment to select the locomotive configuration that is most likely to 
exceed (or have emissions nearest to) an applicable emission standard or 
FEL. In making this selection, consider all factors expected to affect 
emission control performance and compliance with the standards, 
including emission levels of all exhaust constituents, especially 
NOX and PM.
    (b) Test your emission-data locomotives using the procedures and 
equipment specified in subpart F of this part.
    (c) We may measure emissions from any of your emission-data 
locomotives or other locomotives from the engine family.
    (1) We may decide to do the testing at your plant or any other 
facility. If we do this, you must deliver the locomotive to a test 
facility we designate. If we do the testing at your plant, you must 
schedule it as soon as possible and make available the instruments, 
personnel, and equipment we need.
    (2) If we measure emissions from one of your locomotives, the 
results of that testing become the official emission results for the 
locomotive. Unless we later invalidate these data, we may decide not to 
consider your data in determining if your engine family meets applicable 
requirements.
    (3) Before we test one of your locomotives, we may set its 
adjustable parameters to any point within the adjustable ranges (see 
Sec. 1033.115(b)).
    (4) Before we test one of your locomotives, we may calibrate it 
within normal production tolerances for anything we do not consider an 
adjustable parameter. For example, this would apply where we determine 
that an engine parameter is not an adjustable parameter (as defined in 
Sec. 1033.901) but

[[Page 36]]

that it is subject to production variability.
    (d) You may ask to use carryover emission data from a previous model 
year instead of doing new tests if all the following are true:
    (1) The engine family from the previous model year differs from the 
current engine family only with respect to model year, or other factors 
not related to emissions. You may include additional configurations 
subject to the provisions of Sec. 1033.225.
    (2) The emission-data locomotive from the previous model year 
remains the appropriate emission-data locomotive under paragraph (b) of 
this section.
    (3) The data show that the emission-data locomotive would meet all 
the requirements that apply to the engine family covered by the 
application for certification.
    (e) You may ask to use emission data from a different engine family 
you have already certified instead of testing a locomotive in the second 
engine family if all the following are true:
    (1) The same engine is used in both engine families.
    (2) You demonstrate to us that the differences in the two families 
are sufficiently small that the locomotives in the untested family will 
meet the same applicable notch standards calculated from the test data.
    (f) We may require you to test a second locomotive of the same or 
different configuration in addition to the locomotive tested under 
paragraph (b) of this section.
    (g) If you use an alternate test procedure under 40 CFR 1065.10 and 
later testing shows that such testing does not produce results that are 
equivalent to the procedures specified in subpart F of this part, we may 
reject data you generated using the alternate procedure.
    (h) The requirement to measure smoke emissions is waived for 
certification and production line testing, except where there is reason 
to believe your locomotives do not meet the applicable smoke standards.
    (i) Measure CO2 with each test. Measure CH4 
with each low-hour certification test using the procedures specified in 
40 CFR part 1065 starting in the 2012 model year. Also measure 
N2O with each low-hour certification test using the 
procedures specified in 40 CFR part 1065 for any engine family that 
depends on NOx aftertreatment to meet emission standards. Small 
manufacturers/remanufacturers may omit measurement of N2O and 
CH4. Use the same units and modal calculations as for your 
other results to report a single weighted value for CO2, 
N2O, and CH4. Round the final values as follows:
    (1) Round CO2 to the nearest 1 g/bhp-hr.
    (2) Round N2O to the nearest 0.001 g/bhp-hr.
    (3) Round CH4 to the nearest 0.001g/bhp-hr.

[73 FR 37197, June 30, 2008, as amended at 74 FR 56508, Oct. 30, 2008; 
75 FR 22984, Apr. 30, 2010]



Sec. 1033.240  Demonstrating compliance with exhaust emission standards.

    (a) For purposes of certification, your engine family is considered 
in compliance with the applicable numerical emission standards in Sec. 
1033.101 if all emission-data locomotives representing that family have 
test results showing official emission results and deteriorated emission 
levels at or below these standards.
    (1) If you include your locomotive in the ABT program in subpart H 
of this part, your FELs are considered to be the applicable emission 
standards with which you must comply.
    (2) If you do not include your remanufactured locomotive in the ABT 
program in subpart H of this part, but it was previously included in the 
ABT program in subpart H of this part, the previous FELs are considered 
to be the applicable emission standards with which you must comply.
    (b) Your engine family is deemed not to comply if any emission-data 
locomotive representing that family has test results showing an official 
emission result or a deteriorated emission level for any pollutant that 
is above an applicable emission standard. Use the following steps to 
determine the deteriorated emission level for the test locomotive:
    (1) Collect emission data using measurements with enough significant 
figures to calculate the cycle-weighted

[[Page 37]]

emission rate to at least one more decimal place than the applicable 
standard. Apply any applicable humidity corrections before weighting 
emissions.
    (2) Apply the regeneration factors if applicable. At this point the 
emission rate is generally considered to be an official emission result.
    (3) Apply the deterioration factor to the official emission result, 
as described in Sec. 1033.245, then round the adjusted figure to the 
same number of decimal places as the emission standard. This adjusted 
value is the deteriorated emission level. Compare these emission levels 
from the emission-data locomotive with the applicable emission 
standards. In the case of NOX+NMHC standards, apply the 
deterioration factor to each pollutant and then add the results before 
rounding.
    (4) The highest deteriorated emission levels for each pollutant are 
considered to be the certified emission levels.
    (c) An owner/operator remanufacturing its locomotives to be 
identical to their previously certified configuration may certify by 
design without new emission test data. To do this, submit the 
application for certification described in Sec. 1033.205, but instead 
of including test data, include a description of how you will ensure 
that your locomotives will be identical in all material respects to 
their previously certified condition. You may use reconditioned parts 
consistent with good engineering judgment. You have all of the 
liabilities and responsibilities of the certificate holder for 
locomotives you certify under this paragraph.

[73 FR 37197, June 30, 2008, as amended at 75 FR 22984, Apr. 30, 2010]



Sec. 1033.245  Deterioration factors.

    Establish deterioration factors for each pollutant to determine, as 
described in Sec. 1033.240, whether your locomotives will meet emission 
standards for each pollutant throughout the useful life. Determine 
deterioration factors as described in this section, either with an 
engineering analysis, with pre-existing test data, or with new emission 
measurements. The deterioration factors are intended to reflect the 
deterioration expected to result during the useful life of a locomotive 
maintained as specified in Sec. 1033.125. If you perform durability 
testing, the maintenance that you may perform on your emission-data 
locomotive is limited to the maintenance described in Sec. 1033.125.
    (a) Your deterioration factors must take into account any available 
data from in-use testing with similar locomotives, consistent with good 
engineering judgment. For example, it would not be consistent with good 
engineering judgment to use deterioration factors that predict emission 
increases over the useful life of a locomotive or locomotive engine that 
are significantly less than the emission increases over the useful life 
observed from in-use testing of similar locomotives.
    (b) Deterioration factors may be additive or multiplicative.
    (1) Additive deterioration factor for exhaust emissions. Except as 
specified in paragraph (b)(2) of this section, use an additive 
deterioration factor for exhaust emissions. An additive deterioration 
factor for a pollutant is the difference between exhaust emissions at 
the end of the useful life and exhaust emissions at the low-hour test 
point. In these cases, adjust the official emission results for each 
tested locomotive at the selected test point by adding the factor to the 
measured emissions. The deteriorated emission level is intended to 
represent the highest emission level during the useful life. Thus, if 
the factor is less than zero, use zero. Additive deterioration factors 
must be specified to one more decimal place than the applicable 
standard.
    (2) Multiplicative deterioration factor for exhaust emissions. Use a 
multiplicative deterioration factor if good engineering judgment calls 
for the deterioration factor for a pollutant to be the ratio of exhaust 
emissions at the end of the useful life to exhaust emissions at the low-
hour test point. For example, if you use aftertreatment technology that 
controls emissions of a pollutant proportionally to engine-out 
emissions, it is often appropriate to use a multiplicative deterioration 
factor. Adjust the official emission results for each tested locomotive 
at the selected test point by multiplying the measured emissions by the 
deterioration factor.

[[Page 38]]

The deteriorated emission level is intended to represent the highest 
emission level during the useful life. Thus, if the factor is less than 
one, use one. A multiplicative deterioration factor may not be 
appropriate in cases where testing variability is significantly greater 
than locomotive-to-locomotive variability. Multiplicative deterioration 
factors must be specified to one more significant figure than the 
applicable standard.
    (c) Deterioration factors for smoke are always additive.
    (d) If your locomotive vents crankcase emissions to the exhaust or 
to the atmosphere, you must account for crankcase emission 
deterioration, using good engineering judgment. You may use separate 
deterioration factors for crankcase emissions of each pollutant (either 
multiplicative or additive) or include the effects in combined 
deterioration factors that include exhaust and crankcase emissions 
together for each pollutant.
    (e) Include the following information in your application for 
certification:
    (1) If you determine your deterioration factors based on test data 
from a different engine family, explain why this is appropriate and 
include all the emission measurements on which you base the 
deterioration factor.
    (2) If you determine your deterioration factors based on engineering 
analysis, explain why this is appropriate and include a statement that 
all data, analyses, evaluations, and other information you used are 
available for our review upon request.
    (3) If you do testing to determine deterioration factors, describe 
the form and extent of service accumulation, including a rationale for 
selecting the service-accumulation period and the method you use to 
accumulate hours.



Sec. 1033.250  Reporting and recordkeeping.

    (a) Within 45 days after the end of the model year, send the 
Designated Compliance Officer a report describing the following 
information about locomotives you produced during the model year:
    (1) Report the total number of locomotives you produced in each 
engine family by locomotive model and engine model.
    (2) If you produced exempted locomotives, report the number of 
exempted locomotives you produced for each locomotive model and identify 
the buyer or shipping destination for each exempted locomotive. You do 
not need to report under this paragraph (a)(2) locomotives that were 
temporarily exempted, exported locomotives, locomotives exempted as 
manufacturer/remanufacturer-owned locomotives, or locomotives exempted 
as test locomotives.
    (b) Organize and maintain the following records:
    (1) A copy of all applications and any summary information you send 
us.
    (2) Any of the information we specify in Sec. 1033.205 that you 
were not required to include in your application.
    (3) A detailed history of each emission-data locomotive. For each 
locomotive, describe all of the following:
    (i) The emission-data locomotive's construction, including its 
origin and buildup, steps you took to ensure that it represents 
production locomotives, any components you built specially for it, and 
all the components you include in your application for certification.
    (ii) How you accumulated locomotive operating hours (service 
accumulation), including the dates and the number of hours accumulated.
    (iii) All maintenance, including modifications, parts changes, and 
other service, and the dates and reasons for the maintenance.
    (iv) All your emission tests, including documentation on routine and 
standard tests, as specified in part 40 CFR part 1065, and the date and 
purpose of each test.
    (v) All tests to diagnose locomotive or emission control 
performance, giving the date and time of each and the reasons for the 
test.
    (vi) Any other significant events.
    (4) If you test a development engine for certification, you may omit 
information otherwise required by paragraph (b)(3) of this section that 
is unrelated to emissions and emission-related components.
    (5) Production figures for each engine family divided by assembly 
plant.

[[Page 39]]

    (6) Keep a list of locomotive identification numbers for all the 
locomotives you produce under each certificate of conformity.
    (c) Keep data from routine emission tests (such as test cell 
temperatures and relative humidity readings) for one year after we issue 
the associated certificate of conformity. Keep all other information 
specified in paragraph (a) of this section for eight years after we 
issue your certificate.
    (d) Store these records in any format and on any media, as long as 
you can promptly send us organized, written records in English if we ask 
for them. You must keep these records readily available. We may review 
them at any time.
    (e) Send us copies of any locomotive maintenance instructions or 
explanations if we ask for them.



Sec. 1033.255  EPA decisions.

    (a) If we determine your application is complete and shows that the 
engine family meets all the requirements of this part and the Clean Air 
Act, we will issue a certificate of conformity for your engine family 
for that model year. We may make the approval subject to additional 
conditions.
    (b) We may deny your application for certification if we determine 
that your engine family fails to comply with emission standards or other 
requirements of this part or the Clean Air Act. We will base our 
decision on all available information. If we deny your application, we 
will explain why in writing.
    (c) In addition, we may deny your application or suspend or revoke 
your certificate if you do any of the following:
    (1) Refuse to comply with any testing or reporting requirements.
    (2) Submit false or incomplete information (paragraph (e) of this 
section applies if this is fraudulent).
    (3) Render inaccurate any test data.
    (4) Deny us from completing authorized activities. This includes a 
failure to provide reasonable assistance.
    (5) Produce locomotives for importation into the United States at a 
location where local law prohibits us from carrying out authorized 
activities.
    (6) Fail to supply requested information or amend your application 
to include all locomotives being produced.
    (7) Take any action that otherwise circumvents the intent of the 
Clean Air Act or this part.
    (d) We may void your certificate if you do not keep the records we 
require or do not give us information when we ask for it.
    (e) We may void your certificate if we find that you intentionally 
submitted false or incomplete information.
    (f) If we deny your application or suspend, revoke, or void your 
certificate, you may ask for a hearing (see Sec. 1033.920).

[73 FR 37197, June 30, 2008, as amended at 75 FR 22984, Apr. 30, 2010]



 Subpart D_Manufacturer and Remanufacturer Production Line Testing and 
                             Audit Programs



Sec. 1033.301  Applicability.

    The requirements of this part apply to manufacturers/remanufacturers 
of locomotives certified under this part, with the following exceptions:
    (a) The requirements of Sec. Sec. 1033.310 1033.315, 1033.320, and 
1033.330 apply only to manufacturers of freshly manufactured locomotives 
or locomotive engines (including those used for repowering). We may also 
apply these requirements to remanufacturers of any locomotives for which 
there is reason to believe production problems exist that could affect 
emission performance. When we make a determination that production 
problems may exist that could affect emission performance, we will 
notify the remanufacturer(s). The requirements of Sec. Sec. 1033.310, 
1033.315, 1033.320, and 1033.330 will apply as specified in the notice.
    (b) The requirements of Sec. 1033.335 apply only to 
remanufacturers.
    (c) As specified in Sec. 1033.1(d), we may apply the requirements 
of this subpart to manufacturers/remanufacturers that do not certify the 
locomotives. However, unless we specify otherwise, the requirements of 
this subpart apply to manufacturers/remanufacturers that hold the 
certificates for the locomotives.

[[Page 40]]



Sec. 1033.305  General requirements.

    (a) Manufacturers (and remanufacturers, where applicable) are 
required to test production line locomotives using the test procedures 
specified in Sec. 1033.315. While this subpart refers to locomotive 
testing, you may ask to test locomotive engines instead of testing 
locomotives.
    (b) Remanufacturers are required to conduct audits according to the 
requirements of Sec. 1033.335 to ensure that remanufactured locomotives 
comply with the requirements of this part.
    (c) If you certify an engine family with carryover emission data, as 
described in Sec. 1033.235, and these equivalent engine families 
consistently pass the production-line testing requirements over the 
preceding two-year period, you may ask for a reduced testing rate for 
further production-line testing for that family. If we reduce your 
testing rate, we may limit our approval to any number of model years. In 
determining whether to approve your request, we may consider the number 
of locomotives that have failed emission tests.
    (d) You may ask to use an alternate program or measurement method 
for testing production-line engines. In your request, you must show us 
that the alternate program gives equal assurance that your engines meet 
the requirements of this part. We may waive some or all of this 
subpart's requirements if we approve your alternate program.



Sec. 1033.310  Sample selection for testing.

    (a) At the start of each model year, begin randomly selecting 
locomotives from each engine family for production line testing at a 
rate of one percent. Make the selection of the test locomotive after it 
has been assembled. Perform the testing throughout the entire model year 
to the extent possible, unless we specify a different schedule for your 
tests. For example, we may require you to disproportionately select 
locomotives from the early part of a model year for a new locomotive 
model that has not been subject to PLT previously.
    (1) The required sample size for an engine family (provided that no 
locomotive tested fails to meet applicable emission standards) is the 
lesser of five tests per model year or one percent of projected annual 
production, with a minimum sample size for an engine family of one test 
per model year. See paragraph (d) of this section to determine the 
required number of test locomotives if any locomotives fail to comply 
with any standards.
    (2) You may elect to test additional locomotives. All additional 
locomotives must be tested in accordance with the applicable test 
procedures of this part.
    (b) You must assemble the test locomotives using the same production 
process that will be used for locomotives to be introduced into 
commerce. You may ask us to allow special assembly procedures for 
catalyst-equipped locomotives.
    (c) Unless we approve it, you may not use any quality control, 
testing, or assembly procedures that you do not use during the 
production and assembly of all other locomotives of that family. This 
applies for any test locomotive or any portion of a locomotive, 
including engines, parts, and subassemblies.
    (d) If one or more locomotives fail a production line test, then you 
must test two additional locomotives from the next fifteen produced in 
that engine family for each locomotive that fails. These two additional 
locomotives do not count towards your minimum number of locomotives. For 
example, if you are required to test a minimum of four locomotives under 
paragraph (a) of this section and the second locomotive fails to comply 
with one or more standards, then you must test two additional 
locomotives from the next fifteen produced in that engine family. If 
both of those locomotives pass all standards, you are required to test 
two additional locomotives to complete the original minimum number of 
four. If they both pass, you are done with testing for that family for 
the year since you tested six locomotives (the four originally required 
plus the two additional locomotives).



Sec. 1033.315  Test procedures.

    (a) Test procedures. Use the test procedures described in subpart F 
of this part, except as specified in this section.

[[Page 41]]

    (1) You may ask to use other test procedures. We will approve your 
request if we determine that it is not possible to perform satisfactory 
testing using the specified procedures. We may also approve alternate 
test procedures under Sec. 1033.305(d).
    (2) If you used test procedures other than those in subpart F of 
this part during certification for the engine family (other than 
alternate test procedures necessary for testing a development engine or 
a low hour engine instead of a low mileage locomotive), use the same 
test procedures for production line testing that you used in 
certification.
    (b) Modifying a test locomotive. Once an engine is selected for 
testing, you may adjust, repair, maintain, or modify it or check its 
emissions only if one of the following is true:
    (1) You document the need for doing so in your procedures for 
assembling and inspecting all your production engines and make the 
action routine for all the engines in the engine family.
    (2) This subpart otherwise specifically allows your action.
    (3) We approve your action in advance.
    (c) Adjustable parameters. (1) Confirm that adjustable parameters 
are set to values or positions that are within the range recommended to 
the ultimate purchaser.
    (2) We may require to be adjusted any adjustable parameter to any 
setting within the specified adjustable range of that parameter prior to 
the performance of any test.
    (d) Stabilizing emissions. You may stabilize emissions from the 
locomotives to be tested through service accumulation by running the 
engine through a typical duty cycle. Emissions are considered stabilized 
after 300 hours of operation. You may accumulate fewer hours, consistent 
with good engineering judgment. You may establish a Green Engine Factor 
for each regulated pollutant for each engine family, instead of (or in 
combination with) accumulating actual operation, to be used in 
calculating emissions test results. You must obtain our approval prior 
to using a Green Engine Factor. For catalyst-equipped locomotives, you 
may operate the locomotive for up to 1000 hours (in revenue or other 
service) prior to testing.
    (e) Adjustment after shipment. If a locomotive is shipped to a 
facility other than the production facility for production line testing, 
and an adjustment or repair is necessary because of such shipment, you 
may perform the necessary adjustment or repair only after the initial 
test of the locomotive, unless we determine that the test would be 
impossible to perform or would permanently damage the locomotive.
    (f) Malfunctions. If a locomotive cannot complete the service 
accumulation or an emission test because of a malfunction, you may 
request that we authorize either the repair of that locomotive or its 
deletion from the test sequence.
    (g) Retesting. If you determine that any production line emission 
test of a locomotive is invalid, you must retest it in accordance with 
the requirements of this subpart. Report emission results from all tests 
to us, including test results you determined are invalid. You must also 
include a detailed explanation of the reasons for invalidating any test 
in the quarterly report required in Sec. 1033.320(e). In the event a 
retest is performed, you may ask us within ten days of the end of the 
production quarter for permission to substitute the after-repair test 
results for the original test results. We will respond to the request 
within ten working days of our receipt of the request.



Sec. 1033.320  Calculation and reporting of test results.

    (a) Calculate initial test results using the applicable test 
procedure specified in Sec. 1033.315(a). Include applicable non-
deterioration adjustments such as a Green Engine Factor or regeneration 
adjustment factor. Round the results to one more decimal place than the 
applicable emission standard.
    (b) If you conduct multiple tests on any locomotives, calculate 
final test results by summing the initial test results derived in 
paragraph (a) of this section for each test locomotive, dividing by the 
number of tests conducted on the locomotive, and rounding to one more 
decimal place than the applicable emission standard. For catalyst-
equipped locomotives, you may ask us

[[Page 42]]

to allow you to exclude an initial failed test if all of the following 
are true:
    (1) The catalyst was in a green condition when tested initially.
    (2) The locomotive met all emission standards when retested after 
degreening the catalyst.
    (3) No additional emission-related maintenance or repair was 
performed between the initial failed test and the subsequent passing 
test.
    (c) Calculate the final test results for each test locomotive by 
applying the appropriate deterioration factors, derived in the 
certification process for the engine family, to the final test results, 
and rounding to one more decimal place than the applicable emission 
standard.
    (d) If, subsequent to an initial failure of a production line test, 
the average of the test results for the failed locomotive and the two 
additional locomotives tested, is greater than any applicable emission 
standard or FEL, the engine family is deemed to be in non-compliance 
with applicable emission standards, and you must notify us within ten 
working days of such noncompliance.
    (e) Within 45 calendar days of the end of each quarter, you must 
send to the Designated Compliance Officer a report with the following 
information:
    (1) The location and description of the emission test facilities 
which you used to conduct your testing.
    (2) Total production and sample size for each engine family tested.
    (3) The applicable standards against which each engine family was 
tested.
    (4) For each test conducted, include all of the following:
    (i) A description of the test locomotive, including:
    (A) Configuration and engine family identification.
    (B) Year, make, and build date.
    (C) Engine identification number.
    (D) Number of megawatt-hours (or miles if applicable) of service 
accumulated on locomotive prior to testing.
    (E) Description of Green Engine Factor; how it is determined and how 
it is applied.
    (ii) Location(s) where service accumulation was conducted and 
description of accumulation procedure and schedule, if applicable. If 
the locomotive was introduced into service between assembly and testing, 
you are only required to summarize the service accumulation, rather than 
identifying specific locations.
    (iii) Test number, date, test procedure used, initial test results 
before and after rounding, and final test results for all production 
line emission tests conducted, whether valid or invalid, and the reason 
for invalidation of any test results, if applicable.
    (iv) A complete description of any adjustment, modification, repair, 
preparation, maintenance, and testing which was performed on the test 
locomotive, has not been reported pursuant to any other paragraph of 
this subpart, and will not be performed on other production locomotives.
    (v) Any other information we may ask you to add to your written 
report so we can determine whether your new engines conform with the 
requirements of this part.
    (6) For each failed locomotive as defined in Sec. 1033.330(a), a 
description of the remedy and test results for all retests as required 
by Sec. 1033.340(g).
    (7) The following signed statement and endorsement by an authorized 
representative of your company:

    We submit this report under sections 208 and 213 of the Clean Air 
Act. Our production-line testing conformed completely with the 
requirements of 40 CFR part 1033. We have not changed production 
processes or quality-control procedures for the test locomotives in a 
way that might affect emission controls. All the information in this 
report is true and accurate to the best of my knowledge. I know of the 
penalties for violating the Clean Air Act and the regulations. 
(Authorized Company Representative)



Sec. 1033.325  Maintenance of records; submittal of information.

    (a) You must establish, maintain, and retain the following 
adequately organized and indexed test records:
    (1) A description of all equipment used to test locomotives. The 
equipment requirements in subpart F of this part apply to tests 
performed under this subpart. Maintain these records for each test cell 
that can be used to perform emission testing under this subpart.
    (2) Individual test records for each production line test or audit 
including:

[[Page 43]]

    (i) The date, time, and location of each test or audit.
    (ii) The method by which the Green Engine Factor was calculated or 
the number of hours of service accumulated on the test locomotive when 
the test began and ended.
    (iii) The names of all supervisory personnel involved in the conduct 
of the production line test or audit;
    (iv) A record and description of any adjustment, repair, preparation 
or modification performed on test locomotives, giving the date, 
associated time, justification, name(s) of the authorizing personnel, 
and names of all supervisory personnel responsible for the conduct of 
the action.
    (v) If applicable, the date the locomotive was shipped from the 
assembly plant, associated storage facility or port facility, and the 
date the locomotive was received at the testing facility.
    (vi) A complete record of all emission tests or audits performed 
under this subpart (except tests performed directly by us), including 
all individual worksheets and/or other documentation relating to each 
test, or exact copies thereof, according to the record requirements 
specified in subpart F of this part and 40 CFR part 1065.
    (vii) A brief description of any significant events during testing 
not otherwise described under this paragraph (a)(2), commencing with the 
test locomotive selection process and including such extraordinary 
events as engine damage during shipment.
    (b) Keep all records required to be maintained under this subpart 
for a period of eight years after completion of all testing. Store these 
records in any format and on any media, as long as you can promptly 
provide to us organized, written records in English if we ask for them 
and all the information is retained.
    (c) Send us the following information with regard to locomotive 
production if we ask for it:
    (1) Projected production for each configuration within each engine 
family for which certification has been requested and/or approved.
    (2) Number of locomotives, by configuration and assembly plant, 
scheduled for production.
    (d) Nothing in this section limits our authority to require you to 
establish, maintain, keep or submit to us information not specified by 
this section. We may also ask you to send less information.
    (e) Send all reports, submissions, notifications, and requests for 
approval made under this subpart to the Designated Compliance Officer 
using an approved format.
    (f) You must keep a copy of all reports submitted under this 
subpart.

[73 FR 37197, June 30, 2008, as amended at 75 FR 22984, Apr. 30, 2010]



Sec. 1033.330  Compliance criteria for production line testing.

    There are two types of potential failures: failure of an individual 
locomotive to comply with the standards, and a failure of an engine 
family to comply with the standards.
    (a) A failed locomotive is one whose final test results pursuant to 
Sec. 1033.320(c), for one or more of the applicable pollutants, exceed 
an applicable emission standard or FEL.
    (b) An engine family is deemed to be in noncompliance, for purposes 
of this subpart, if at any time throughout the model year, the average 
of an initial failed locomotive and the two additional locomotives 
tested, is greater than any applicable emission standard or FEL.



Sec. 1033.335  Remanufactured locomotives: installation audit requirements.

    The section specifies the requirements for certifying 
remanufacturers to audit the remanufacture of locomotives covered by 
their certificates of conformity for proper components, component 
settings and component installations on randomly chosen locomotives in 
an engine family.
    (a) You must ensure that all emission related components are 
properly installed on the locomotive and are set to the proper 
specification as indicated in your instructions. You may submit audits 
performed by the owners/operators of the locomotives, provided the 
audits are performed in accordance with the provisions of this section. 
We may require that you obtain affidavits

[[Page 44]]

for audits performed by owners/operators.
    (b) Audit at least five percent of your annual production per model 
year per installer or ten per engine family per installer, whichever is 
less. You must perform more audits if there are any failures. Randomly 
select the locomotives to be audited after the remanufacture is 
complete. We may allow you to select locomotives prior to the completion 
of the remanufacture, if the preselection would not have the potential 
to affect the manner in which the locomotive was remanufactured (e.g., 
where the installer is not aware of the selection prior to the 
completion of the remanufacture). Unless we specify otherwise, you are 
not required to audit installers that remanufacture fewer than 10 
locomotives per year under your certificates (combined for all of your 
engine families).
    (c) The audit should be completed as soon as is practical after the 
remanufacture is complete. In no case may the remanufactured locomotive 
accumulate more than 45,000 miles prior to an audit.
    (d) A locomotive fails if any emission related components are found 
to be improperly installed, improperly adjusted or incorrectly used.
    (e) If a remanufactured locomotive fails an audit, then you must 
audit two additional locomotives from the next ten remanufactured in 
that engine family by that installer.
    (f) An engine family is determined to have failed an audit, if at 
any time during the model year, you determine that the three locomotives 
audited are found to have had any improperly installed, improperly 
adjusted or incorrectly used components. You must notify us within 2 
working days of a determination of an engine family audit failure.
    (g) Within 45 calendar days of the end of each quarter, the 
remanufacturer must send the Designated Compliance Officer a report 
which includes the following information:
    (1) The location and description of your audit facilities which were 
utilized to conduct auditing reported pursuant to this section;
    (2) Total production and sample size for each engine family;
    (3) The applicable standards and/or FELs against which each engine 
family was audited;
    (4) For each audit conducted:
    (i) A description of the audited locomotive, including:
    (A) Configuration and engine family identification;
    (B) Year, make, build date, and remanufacture date; and
    (C) Locomotive and engine identification numbers;
    (ii) Any other information we request relevant to the determination 
whether the new locomotives being remanufactured do in fact conform with 
the regulations with respect to which the certificate of conformity was 
issued;
    (5) For each failed locomotive as defined in paragraph (d) of this 
section, a description of the remedy as required by Sec. 1033.340(g);
    (6) The following signed statement and endorsement by your 
authorized representative:

    We submit this report under sections 208 and 213 of the Clean Air 
Act. Our production-line auditing conformed completely with the 
requirements of 40 CFR part 1033. We have not changed production 
processes or quality-control procedures for the audited locomotives in a 
way that might affect emission controls. All the information in this 
report is true and accurate to the best of my knowledge. I know of the 
penalties for violating the Clean Air Act and the regulations. 
(Authorized Company Representative)

[73 FR 37197, June 30, 2008, as amended at 73 FR 59190, Oct. 8, 2008]



Sec. 1033.340  Suspension and revocation of certificates of conformity.

    (a) A certificate can be suspended for an individual locomotive as 
follows:
    (1) The certificate of conformity is automatically suspended for any 
locomotive that fails a production line test pursuant to Sec. 
1033.330(a), effective from the time the testing of that locomotive is 
completed.
    (2) The certificate of conformity is automatically suspended for any 
locomotive that fails an audit pursuant to Sec. 1033.335(d), effective 
from the time that auditing of that locomotive is completed.
    (b) A certificate can be suspended for an engine family as follows:
    (1) We may suspend the certificate of conformity for an engine 
family that is

[[Page 45]]

in noncompliance pursuant to Sec. 1033.330(b), thirty days after the 
engine family is deemed to be in noncompliance.
    (2) We may suspend the certificate of conformity for an engine 
family that is determined to have failed an audit pursuant to Sec. 
1033.335(f). This suspension will not occur before thirty days after the 
engine family is deemed to be in noncompliance.
    (c) If we suspend your certificate of conformity for an engine 
family, the suspension may apply to all facilities producing engines 
from an engine family, even if you find noncompliant engines only at one 
facility.
    (d) We may revoke a certificate of conformity for any engine family 
in whole or in part if:
    (1) You fail to comply with any of the requirements of this subpart.
    (2) You submit false or incomplete information in any report or 
information provided to us under this subpart.
    (3) You render inaccurate any test data submitted under this 
subpart.
    (4) An EPA enforcement officer is denied the opportunity to conduct 
activities authorized in this subpart.
    (5) An EPA enforcement officer is unable to conduct authorized 
activities for any reason.
    (e) We will notify you in writing of any suspension or revocation of 
a certificate of conformity in whole or in part; a suspension or 
revocation is effective upon receipt of such notification or thirty days 
from the time a locomotive or engine family is deemed to be in 
noncompliance under Sec. Sec. 1033.320(d), 1033.330(a), 1033.330(b), or 
1033.335(f) is made, whichever is earlier, except that the certificate 
is immediately suspended with respect to any failed locomotives as 
provided for in paragraph (a) of this section.
    (f) We may revoke a certificate of conformity for an engine family 
when the certificate has been suspended under paragraph (b) or (c) of 
this section if the remedy is one requiring a design change or changes 
to the locomotive, 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 locomotive, 
as provided for in paragraph (a) of this section, you must take all the 
following actions before the certificate is reinstated for that failed 
locomotive:
    (1) Remedy the nonconformity.
    (2) Demonstrate that the locomotive conforms to applicable standards 
or family emission limits by retesting, or reauditing if applicable, the 
locomotive in accordance with this part.
    (3) Submit a written report to us after successful completion of 
testing (or auditing, if applicable) on the failed locomotive, which 
contains a description of the remedy and testing (or auditing) results 
for each locomotive 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, you must take the 
following actions before we will consider reinstating the certificate:
    (1) Submit a written report to us identifying the reason for the 
noncompliance of the locomotives, describing the remedy, including a 
description of any quality control measures you will use to prevent 
future occurrences of the problem, and stating 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 the regulations 
of this part by testing (or auditing) locomotives selected from normal 
production runs of that engine family. Such testing (or auditing) must 
comply with the provisions of this subpart. If you elect to continue 
testing (or auditing) individual locomotives after suspension of a 
certificate, the certificate is reinstated for any locomotive actually 
determined to be in conformance with the applicable standards or family 
emission limits through testing (or auditing) in accordance with the 
applicable test procedures, provided that we have not revoked the 
certificate under paragraph (f) of this section.
    (i) If the certificate has been revoked for an engine family, you 
must take the following actions before we will issue a certificate that 
would allow you

[[Page 46]]

to continue introduction into commerce of a modified version of that 
family:
    (1) If we determine that the change(s) in locomotive design may have 
an effect on emission deterioration, we will notify you within five 
working days after receipt of the report in paragraph (h) of this 
section, whether subsequent testing/auditing under this subpart will be 
sufficient to evaluate the change(s) or whether additional testing (or 
auditing) will be required.
    (2) After implementing the change or changes intended to remedy the 
nonconformity, you must demonstrate that the modified engine family does 
in fact conform with the regulations of this part by testing locomotives 
(or auditing for remanufactured locomotives) selected from normal 
production runs of that engine family. When both of these requirements 
are met, we will reissue the certificate or issue a new certificate. If 
this subsequent testing (or auditing) reveals failing data the 
revocation remains in effect.
    (j) At any time subsequent to an initial suspension of a certificate 
of conformity for a test or audit locomotive pursuant to paragraph (a) 
of this section, but not later than 30 days (or such other period as may 
we allow) after the notification our decision to suspend or revoke a 
certificate of conformity in whole or in part pursuant to this section, 
you may request a hearing as to whether the tests or audits have been 
properly conducted or any sampling methods have been properly applied. 
(See Sec. 1033.920.)
    (k) Any suspension of a certificate of conformity under paragraphs 
(a) through (d) of this section will be made only after you have been 
offered an opportunity for a hearing conducted in accordance with Sec. 
1033.920. It will not apply to locomotives no longer in your possession.
    (l) If we suspend, revoke, or void a certificate of conformity, and 
you believe that our decision was based on erroneous information, you 
may ask us to reconsider our decision before requesting a hearing. If 
you demonstrate to our satisfaction that our decision was based on 
erroneous information, we will reinstate the certificate.
    (m) We may conditionally reinstate the certificate for that family 
so that you do not have to store non-test locomotives while conducting 
subsequent testing or auditing of the noncomplying family subject to the 
following condition: you must commit to recall all locomotives of that 
family produced from the time the certificate is conditionally 
reinstated if the family fails subsequent testing, or auditing if 
applicable, and must commit to remedy any nonconformity at no expense to 
the owner.



                        Subpart E_In-use Testing



Sec. 1033.401  Applicability.

    The requirements of this subpart are applicable to certificate 
holders for locomotives subject to the provisions of this part. These 
requirements may also be applied to other manufacturers/remanufacturers 
as specified in Sec. 1033.1(d).



Sec. 1033.405  General provisions.

    (a) Each year, we will identify engine families and configurations 
within families that you must test according to the requirements of this 
section.
    (1) We may require you to test one engine family each year for which 
you have received a certificate of conformity. If you are a manufacturer 
that holds certificates of conformity for both freshly manufactured and 
remanufactured locomotive engine families, we may require you to test 
one freshly manufactured engine family and one remanufactured engine 
family. We may require you to test additional engine families if we have 
reason to believe that locomotives in such families do not comply with 
emission standards in use.
    (2) For engine families of less than 10 locomotives per year, no in-
use testing will be required, unless we have reason to believe that 
those engine families are not complying with the applicable emission 
standards in use.
    (b) Test a sample of in-use locomotives from an engine family, as 
specified in Sec. 1033.415. We will use these data, and any other data 
available to us, to determine the compliance status of classes of 
locomotives, including for purposes of recall under 40 CFR part

[[Page 47]]

1068, and whether remedial action is appropriate.



Sec. 1033.410  In-use test procedure.

    (a) You must test the complete locomotives; you may not test engines 
that are not installed in locomotives at the time of testing.
    (b) Test the locomotive according to the test procedures outlined in 
subpart F of this part, except as provided in this section.
    (c) Use the same test procedures for in-use testing as were used for 
certification, except for cases in which certification testing was not 
conducted with a locomotive, but with a development engine or other 
engine. In such cases, we will specify deviations from the certification 
test procedures as appropriate. We may allow or require other alternate 
procedures, with advance approval.
    (d) Set all adjustable locomotive or engine parameters to values or 
positions that are within the range specified in the certificate of 
conformity. We may require you to set these parameters to specific 
values.
    (e) We may waive a portion of the applicable test procedure that is 
not necessary to determine in-use compliance.



Sec. 1033.415  General testing requirements.

    (a) Number of locomotives to be tested. Determine the number of 
locomotives to be tested by the following method:
    (1) Test a minimum of 2 locomotives per engine family, except as 
provided in paragraph (a)(2) of this section. You must test additional 
locomotives if any locomotives fail to meet any standard. Test 2 more 
locomotives for each failing locomotive, but stop testing if the total 
number of locomotives tested equals 10.
    (2) If an engine family has been certified using carryover emission 
data from a family that has been previously tested under paragraph 
(a)(1) of this section (and we have not ordered or begun to negotiate 
remedial action of that family), you need to test only one locomotive 
per engine family. If that locomotive fails to meet applicable standards 
for any pollutant, testing for that engine family must be conducted as 
outlined under paragraph (a)(1) of this section.
    (3) You may ask us to allow you to test more locomotives than the 
minimum number described above or you may concede failure before testing 
10 locomotives.
    (b) Compliance criteria. We will consider failure rates, average 
emission levels and the existence of any defects among other factors in 
determining whether to pursue remedial action. We may order a recall 
pursuant to 40 CFR part 1068 before testing reaches the tenth 
locomotive.
    (c) Collection of in-use locomotives. Procure in-use locomotives 
that have been operated for 50 to 75 percent of the locomotive's useful 
life for testing under this subpart. Complete testing required by this 
section for any engine family before useful life of the locomotives in 
the engine family passes. (Note: Sec. 1033.820 specifies that railroads 
must make reasonable efforts to enable you to perform this testing.)



Sec. 1033.420  Maintenance, procurement and testing of in-use locomotives.

    (a) A test locomotive must have a maintenance history that is 
representative of actual in-use conditions, and identical or equivalent 
to your recommended emission-related maintenance requirements.
    (1) When procuring locomotives for in-use testing, ask the end users 
about the accumulated usage, maintenance, operating conditions, and 
storage of the test locomotives.
    (2) Your selection of test locomotives is subject to our approval. 
Maintain the information you used to procure locomotives for in-use 
testing in the same manner as is required in Sec. 1033.250.
    (b) You may perform minimal set-to-spec maintenance on a test 
locomotive before conducting in-use testing. Maintenance may include 
only that which is listed in the owner's instructions for locomotives 
with the amount of service and age of the acquired test locomotive. 
Maintain documentation of all maintenance and adjustments.
    (c) If the locomotive selected for testing is equipped with emission 
diagnostics meeting the requirements in Sec. 1033.110 and the MIL is 
illuminated, you may read the code and repair the

[[Page 48]]

malfunction according to your emission-related maintenance instructions, 
but only to the degree that an owner/operator would be required to 
repair the malfunction under Sec. 1033.815.
    (d) Results of at least one valid set of emission tests using the 
test procedure described in subpart F of this part is required for each 
in-use locomotive.
    (e) If in-use testing results show that an in-use locomotive fails 
to comply with any applicable emission standards, you must determine the 
reason for noncompliance and report your findings in the quarterly in-
use test result report described in Sec. 1033.425.



Sec. 1033.425  In-use test program reporting requirements.

    (a) Within 90 days of completion of testing, send us all emission 
test results generated from the in-use testing program. Report all of 
the following information for each locomotive tested:
    (1) Engine family, and configuration.
    (2) Locomotive and engine models.
    (3) Locomotive and engine serial numbers.
    (4) Date of manufacture or remanufacture, as applicable.
    (5) Megawatt-hours of use (or miles, as applicable).
    (6) Date and time of each test attempt.
    (7) Results of all emission testing.
    (8) Results (if any) of each voided or failed test attempt.
    (9) Summary of all maintenance and/or adjustments performed.
    (10) Summary of all modifications and/or repairs.
    (11) Determinations of noncompliance.
    (12) The following signed statement and endorsement by an authorized 
representative of your company.
    We submit this report under sections 208 and 213 of the Clean Air 
Act. Our in-use testing conformed completely with the requirements of 40 
CFR part 1033. All the information in this report is true and accurate 
to the best of my knowledge. I know of the penalties for violating the 
Clean Air Act and the regulations. (Authorized Company Representative)
    (b) Report to us within 90 days of completion of testing the 
following information for each engine family tested:
    (1) The serial numbers of all locomotive that were excluded from the 
test sample because they did not meet the maintenance requirements of 
Sec. 1033.420.
    (2) The owner of each locomotive identified in paragraph (b)(1) of 
this section (or other entity responsible for the maintenance of the 
locomotive).
    (3) The specific reasons why the locomotives were excluded from the 
test sample.
    (c) Submit the information outlined in paragraphs (a) and (b) of 
this section electronically using an approved format. We may exempt you 
from this requirement upon written request with supporting 
justification.
    (d) Send all testing reports and requests for approvals to the 
Designated Compliance Officer.



                        Subpart F_Test Procedures



Sec. 1033.501  General provisions.

    (a) Except as specified in this subpart, use the equipment and 
procedures for compression-ignition engines in 40 CFR part 1065 to 
determine whether your locomotives meet the duty-cycle emission 
standards in Sec. 1033.101. Use the applicable duty cycles specified in 
this subpart. Measure emissions of all the pollutants we regulate in 
Sec. 1033.101 plus CO2. Measure N2O, and 
CH4 as described in Sec. 1033.235. The general test 
procedure is the procedure specified in 40 CFR part 1065 for steady-
state discrete-mode cycles. However, if you use the optional ramped 
modal cycle in Sec. 1033.520, follow the procedures for ramped modal 
testing in 40 CFR part 1065. The following exceptions from the 1065 
procedures apply:
    (1) You must average power and emissions over the sampling periods 
specified in this subpart for both discrete-mode testing and ramped 
modal testing.
    (2) The test cycle is considered to be steady-state with respect to 
operator demand rather than engine speed and load.
    (3) The provisions related to engine mapping and duty cycle 
generation (40

[[Page 49]]

CFR 1065.510 and 1065.512) are not applicable to testing of complete 
locomotives or locomotive engines because locomotive operation and 
locomotive duty cycles are based on operator demand via locomotive notch 
settings rather than engine speeds and loads. The cycle validation 
criteria (40 CFR 1065.514) are not applicable to testing of complete 
locomotives but do apply for dynamometer testing of engines.
    (b) You may use special or alternate procedures to the extent we 
allow as them under 40 CFR 1065.10. In some cases, we allow you to use 
procedures that are less precise or less accurate than the specified 
procedures if they do not affect your ability to show that your 
locomotives comply with the applicable emission standards. This 
generally requires emission levels to be far enough below the applicable 
emission standards so that any errors caused by greater imprecision or 
inaccuracy do not affect your ability to state unconditionally that the 
locomotives meet all applicable emission standards.
    (c) This part allows (with certain limits) testing of either a 
complete locomotive or a separate uninstalled engine. When testing a 
locomotive, you must test the complete locomotive in its in-use 
configuration, except that you may disconnect the power output and fuel 
input for the purpose of testing. To calculate power from measured 
alternator/generator output, use an alternator/generator efficiency 
curve that varies with speed/load, consistent with good engineering 
judgment.
    (d) Unless smoke standards do not apply for your locomotives or the 
testing requirement is waived, measure smoke emissions using the 
procedures in Sec. 1033.525.
    (e) Use the applicable fuel listed in 40 CFR part 1065, subpart H, 
to perform valid tests.
    (1) For diesel-fueled locomotives, use the appropriate diesel fuel 
specified in 40 CFR part 1065, subpart H, for emission testing. The 
applicable diesel test fuel is either the ultra low-sulfur diesel or 
low-sulfur diesel fuel, as specified in Sec. 1033.101. Identify the 
test fuel in your application for certification and ensure that the fuel 
inlet label is consistent with your selection of the test fuel (see 
Sec. Sec. 1033.101 and 1033.135).
    (2) You may ask to use as a test fuel commercially available diesel 
fuel similar but not identical to the applicable fuel specified in 40 
CFR part 1065, subpart H; we will approve your request if you show us 
that it does not affect your ability to demonstrate compliance with the 
applicable emission standards. If your locomotive uses sulfur-sensitive 
technology, you may not use an in-use fuel that has a lower sulfur 
content than the range specified for the otherwise applicable test fuel 
in 40 CFR part 1065. If your locomotive does not use sulfur-sensitive 
technology, we may allow you to use an in-use fuel that has a lower 
sulfur content than the range specified for the otherwise applicable 
test fuel in 40 CFR part 1065, but may require that you correct PM 
emissions to account for the sulfur differences.
    (3) For service accumulation, use the test fuel or any commercially 
available fuel that is representative of the fuel that in-use 
locomotives will use.
    (f) See Sec. 1033.505 for information about allowable ambient 
testing conditions for testing.
    (g) This subpart is addressed to you as a manufacturer/
remanufacturer, but it applies equally to anyone who does testing for 
you, and to us when we perform testing to determine if your locomotives 
meet emission standards.
    (h) We may also perform other testing as allowed by the Clean Air 
Act.
    (i) For passenger locomotives that can generate hotel power from the 
main propulsion engine, the locomotive must comply with the emission 
standards when in non-hotel setting. For hotel mode, the locomotive is 
subject to the notch cap provisions of Sec. 1033.101 and the defeat 
device prohibition of Sec. 1033.115.

[73 FR 37197, June 30, 2008, as amended at 74 FR 56508, Oct. 30, 2008; 
75 FR 22984, Apr. 30, 2010]



Sec. 1033.505  Ambient conditions.

    This section specifies the allowable ambient conditions (including 
temperature and pressure) under which testing may be performed to 
determine compliance with the emission standards of Sec. 1068.101. 
Manufacturers/remanufacturers may ask to perform testing at conditions 
other than those

[[Page 50]]

allowed by this section. We will allow such testing provided it does not 
affect your ability to demonstrate compliance with the applicable 
standards. See Sec. Sec. 1033.101 and 1033.115 for more information 
about the requirements that apply at other conditions.
    (a) Temperature. (1) Testing may be performed with ambient 
temperatures from 15.5 [deg]C (60 [deg]F) to 40.5 [deg]C (105 [deg]F). 
Do not correct emissions for temperature effects within this range.
    (2) It is presumed that combustion air will be drawn from the 
ambient air. Thus, the ambient temperature limits of this paragraph (a) 
apply for intake air upstream of the engine. If you do not draw 
combustion air from the ambient air, use good engineering judgment to 
ensure that any temperature difference (between the ambient air and 
combustion air) does not cause the emission measurement to be 
unrepresentative of in-use emissions.
    (3) If we allow you to perform testing at ambient temperatures below 
15.5 [deg]C, you must correct NOX emissions for temperature 
effects, consistent with good engineering judgment. For example, if the 
intake air temperature (at the manifold) is lower at the test 
temperature than it would be for equivalent operation at an ambient 
temperature of 15.5 [deg]C, you generally will need to adjust your 
measured NOX emissions to account for the effect of the lower 
intake air temperature. However, if you maintain a constant manifold air 
temperature, you will generally not need to correct emissions.
    (b) Altitude/pressure. Testing may be performed with ambient 
pressures from 88.000 kPa (26.0 in Hg) to 103.325 kPa (30.5 in Hg). This 
is intended to correspond to altitudes up to 4000 feet above sea level. 
Do not correct emissions for pressure effects within this range.
    (c) Humidity. Testing may be performed with any ambient humidity 
level. Correct NOX emissions as specified in 40 CFR 1065.670. 
Do not correct any other emissions for humidity effects.
    (d) Wind. If you test outdoors, use good engineering judgment to 
ensure that excessive wind does not affect your emission measurements. 
Winds are excessive if they disturb the size, shape, or location of the 
exhaust plume in the region where exhaust samples are drawn or where the 
smoke plume is measured, or otherwise cause any dilution of the exhaust. 
Tests may be conducted if wind shielding is placed adjacent to the 
exhaust plume to prevent bending, dispersion, or any other distortion of 
the exhaust plume as it passes through the optical unit or through the 
sample probe.

[73 FR 37197, June 30, 2008, as amended at 75 FR 22984, Apr. 30, 2010]



Sec. 1033.510  Auxiliary power units.

    If your locomotive is equipped with an auxiliary power unit (APU) 
that operates during an idle shutdown mode, you must account for the 
APU's emissions rates as specified in this section, unless the APU is 
part of an AESS system that was certified separately from the rest of 
the locomotive. This section does not apply for auxiliary engines that 
only provide hotel power.
    (a) Adjust the locomotive main engine's idle emission rate (g/hr) as 
specified in Sec. 1033.530. Add the APU emission rate (g/hr) that you 
determine under paragraph (b) of this section. Use the locomotive main 
engine's idle power as specified in Sec. 1033.530.
    (b) Determine the representative emission rate for the APU using one 
of the following methods.
    (1) Installed APU tested separately. If you separately measure 
emission rates (g/hr) for each pollutant from the APU installed in the 
locomotive, you may use the measured emissions rates (g/hr) as the 
locomotive's idle emissions rates when the locomotive is shutdown and 
the APU is operating. For all testing other than in-use testing, apply 
appropriate deterioration factors to the measured emission rates. You 
may ask to carryover APU emission data for a previous test, or use data 
for the same APU installed on locomotives in another engine family.
    (2) Uninstalled APU tested separately. If you separately measure 
emission rates (g/hr) over an appropriate duty-cycle for each pollutant 
from the APU when it is not installed in the locomotive, you may use the 
measured emissions rates (g/hr) as the locomotive's idle emissions rates 
when the locomotive is shutdown and the APU is

[[Page 51]]

operating. For the purpose of this paragraph (b)(2), an appropriate 
duty-cycle is one that approximates the APU engine's cycle-weighted 
power when operating in the locomotive. Apply appropriate deterioration 
factors to the measured emission rates. You may ask to carryover APU 
emission data for a previous test, or use data for the same APU 
installed on locomotives in another engine family.
    (3) APU engine certification data. If the engine used for the APU 
has been certified to EPA emission standards you may calculate the APU's 
emissions based upon existing EPA-certification information about the 
APU's engine. In this case, calculate the APU's emissions as follows:
    (i) For each pollutant determine the brake-specific standard/FEL to 
which the APU engine was originally EPA-certified.
    (ii) Determine the APU engine's cycle-weighted power when operating 
in the locomotive.
    (iii) Multiply each of the APU's applicable brake-specific 
standards/FELs by the APU engine's cycle-weighted power. The results are 
the APU's emissions rates (in g/hr).
    (iv) Use these emissions rates as the locomotive's idle emissions 
rates when the locomotive is shutdown and the APU is running. Do not 
apply a deterioration factor to these values.
    (4) Other. You may ask us to approve an alternative means to account 
for APU emissions.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59190, Oct. 8, 2008]



Sec. 1033.515  Discrete-mode steady-state emission tests of locomotives and locomotive engines.

    This section describes how to test locomotives at each notch setting 
so that emissions can be weighted according to either the line-haul duty 
cycle or the switch duty cycle. The locomotive test cycle consists of a 
warm-up followed by a sequence of nominally steady-state discrete test 
modes, as described in Table 1 to this section. The test modes are 
steady-state with respect to operator demand, which is the notch setting 
for the locomotive. Engine speeds and loads are not necessarily steady-
state.
    (a) Follow the provisions of 40 CFR part 1065, subpart F for general 
pre-test procedures (including engine and sampling system pre-
conditioning which is included as engine warm-up). You may operate the 
engine in any way you choose to warm it up prior to beginning the sample 
preconditioning specified in 40 CFR part 1065.
    (b) Begin the test by operating the locomotive over the pre-test 
portion of the cycle specified in Table 1 to this section. For 
locomotives not equipped with catalysts, you may begin the test as soon 
as the engine reaches its lowest idle setting. For catalyst-equipped 
locomotives, you may begin the test in normal idle mode if the engine 
does not reach its lowest idle setting within 15 minutes. If you do 
start in normal idle, run the low idle mode after normal idle, then 
resume the specified mode sequence (without repeating the normal idle 
mode).
    (c) Measure emissions during the rest of the test cycle.
    (1) Each test mode begins when the operator demand to the locomotive 
or engine is set to the applicable notch setting.
    (2) Start measuring gaseous emissions, power, and fuel consumption 
at the start of the test mode A and continue until the completion of 
test mode 8. You may zero and span analyzers between modes (or take 
other actions consistent with good engineering judgment).
    (i) The sample period over which emissions for the mode are averaged 
generally begins when the operator demand is changed to start the test 
mode and ends within 5 seconds of the minimum sampling time for the test 
mode is reached. However, you need to shift the sampling period to 
account for sample system residence times. Follow the provisions of 40 
CFR 1065.308 and 1065.309 to time align emission and work measurements.
    (ii) The sample period is 300 seconds for all test modes except mode 
10. The sample period for test mode 8 is 600 seconds.
    (3) If gaseous emissions are sampled using a batch-sampling method, 
begin proportional sampling at the beginning of each sampling period and 
terminate

[[Page 52]]

sampling once the minimum time in each test mode is reached,  5 seconds.
    (4) If applicable, begin the smoke test at the start of the test 
mode A. Continue collecting smoke data until the completion of test mode 
8. Refer to Sec. 1033.101 to determine applicability of smoke testing 
and Sec. 1033.525 for details on how to conduct a smoke test.
    (5) Begin proportional sampling of PM emissions at the beginning of 
each sampling period and terminate sampling within  5 seconds of the specified time in each test mode. If 
the PM sample is not sufficiently large, take one of the following 
actions consistent with good engineering judgment:
    (i) Extend the sampling period up to a maximum of 15 minutes.
    (ii) Group the modes in the same manner as the phases of the ramped 
modal cycle and use three different dilution settings for the groups. 
Use one setting for both idle modes, one for dynamic brake through notch 
5, and one for notches 6 through 8. For each group, ensure that the mode 
with the highest exhaust flow (typically normal idle, notch 5, and notch 
8) meets the criteria for minimum dilution ratio in 40 CFR part 1065.
    (6) Proceed through each test mode in the order specified in Table 1 
to this section until the locomotive test cycle is completed.
    (7) At the end of each numbered test mode, you may continue to 
operate sampling and dilution systems to allow corrections for the 
sampling system's response time.
    (8) Following the completion of Mode 8, conduct the post sampling 
procedures in Sec. 1065.530. Note that cycle validation criteria do not 
apply to testing of complete locomotives.

                                Table 1 to Sec.  1033.515--Locomotive Test Cycle
----------------------------------------------------------------------------------------------------------------
                                                               Time in mode        Sample averaging  period for
             Test mode                  Notch setting          (minutes) \1\              emissions \1\
----------------------------------------------------------------------------------------------------------------
Pre-test idle.....................  Lowest idle setting..  10 to 15 \3\........  Not applicable
A.................................  Low idle \2\.........  5 to 10.............  300  5
                                                                                  seconds
B.................................  Normal idle..........  5 to 10.............  300  5
                                                                                  seconds
C.................................  Dynamic brake \2\....  5 to 10.............  300  5
                                                                                  seconds
1.................................  Notch 1..............  5 to 10.............  300  5
                                                                                  seconds
2.................................  Notch 2..............  5 to 10.............  300  5
                                                                                  seconds
3.................................  Notch 3..............  5 to 10.............  300  5
                                                                                  seconds
4.................................  Notch 4..............  5 to 10.............  300  5
                                                                                  seconds
5.................................  Notch 5..............  5 to 10.............  300  5
                                                                                  seconds
6.................................  Notch 6..............  5 to 10.............  300  5
                                                                                  seconds
7.................................  Notch 7..............  5 to 10.............  300  5
                                                                                  seconds
8.................................  Notch 8..............  10 to 15............  600  5
                                                                                  seconds
----------------------------------------------------------------------------------------------------------------
\1\ The time in each notch and sample averaging period may be extended as needed to allow for collection of a
  sufficiently large PM sample.
\2\ Omit if not so equipped.
\3\ See paragraph (b) of this section for alternate pre-test provisions.

    (d) Use one of the following approaches for sampling PM emissions 
during discrete-mode steady-state testing:
    (1) Engines certified to a PM standard/FEL at or above 0.05 g/bhp-
hr. Use a separate PM filter sample for each test mode of the locomotive 
test cycle according to the procedures specified in paragraph (a) 
through (c) of this section. You may ask to use a shorter sampling 
period if the total mass expected to be collected would cause 
unacceptably high pressure drop across the filter before reaching the 
end of the required sampling time. We will not allow sampling times 
shorter than 60 seconds. When we conduct locomotive emission tests, we 
will adhere to the time limits for each of the numbered modes in Table 1 
to this section.
    (2) Engines certified to a PM standard/FEL below 0.05 g/bhp-hr. (i) 
You may use separate PM filter samples for each test mode as described 
in paragraph (d)(1) of this section; however, we recommend that you do 
not. The low rate of sample filter loading will result in very long 
sampling times and the large number of filter samples may induce 
uncertainty stack-up that will lead to unacceptable PM measurement 
accuracy. Instead, we recommend that you

[[Page 53]]

measure PM emissions as specified in paragraph (d)(2)(ii) of this 
section.
    (ii) You may use a single PM filter for sampling PM over all of the 
test modes of the locomotive test cycle as specified in this paragraph 
(d)(2). Vary the sample time to be proportional to the applicable line-
haul or switch weighting factors specified in Sec. 1033.530 for each 
mode. The minimum sampling time for each mode is 400 seconds multiplied 
by the weighting factor. For example, for a mode with a weighting factor 
of 0.030, the minimum sampling time is 12.0 seconds. PM sampling in each 
mode must be proportional to engine exhaust flow as specified in 40 CFR 
part 1065. Begin proportional sampling of PM emissions at the beginning 
of each test mode as is specified in paragraph (c) of this section. End 
the sampling period for each test mode so that sampling times are 
proportional to the weighting factors for the applicable duty cycles. If 
necessary, you may extend the time limit for each of the test modes 
beyond the sampling times in Table 1 to this section to increase the 
sampled mass of PM emissions or to account for proper weighting of the 
PM emission sample over the entire cycle, using good engineering 
judgment.
    (e) This paragraph (e) describes how to test locomotive engines when 
not installed in a locomotive. Note that the test procedures for 
dynamometer engine testing of locomotive engines are intended to produce 
emission measurements that are the same as emission measurements 
produced during testing of complete locomotives using the same engine 
configuration. The following requirements apply for all engine tests:
    (1) Specify a second-by-second set of engine speed and load points 
that are representative of in-use locomotive operation for each of the 
set-points of the locomotive test cycle described in Table 1 to this 
section, including transitions from one notch to the next. This is your 
reference cycle for validating your cycle. You may ignore points between 
the end of the sampling period for one mode and the point at which you 
change the notch setting to begin the next mode.
    (2) Keep the temperature of the air entering the engine after any 
charge air cooling to within 5 [deg]C of the typical intake manifold air 
temperature when the engine is operated in the locomotive under similar 
ambient conditions.
    (3) Proceed as specified in paragraphs (a) through (d) of this 
section for testing complete locomotives.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59190, Oct. 8, 2008; 74 
FR 8424, Feb. 24, 2009; 75 FR 22985, Apr. 30, 2010]



Sec. 1033.520  Alternative ramped modal cycles.

    (a) Locomotive testing over a ramped modal cycle is intended to 
improve measurement accuracy at low emission levels by allowing the use 
of batch sampling of PM and gaseous emissions over multiple locomotive 
notch settings. Ramped modal cycles combine multiple test modes of a 
discrete-mode steady-state into a single sample period. Time in notch is 
varied to be proportional to weighting factors. The ramped modal cycle 
for line-haul locomotives is shown in Table 1 to this section. The 
ramped modal cycle for switch locomotives is shown in Table 2 to this 
section. Both ramped modal cycles consist of a warm-up followed by three 
test phases that are each weighted in a manner that maintains the duty 
cycle weighting of the line-haul and switch locomotive duty cycles in 
Sec. 1033.530. You may use ramped modal cycle testing for any 
locomotives certified under this part.
    (b) Ramped modal testing requires continuous gaseous analyzers and 
three separate PM filters (one for each phase). You may collect a single 
batch sample for each test phase, but you must also measure gaseous 
emissions continuously to allow calculation of notch caps as required 
under Sec. 1033.101.
    (c) You may operate the engine in any way you choose to warm it up. 
Then follow the provisions of 40 CFR part 1065, subpart F for general 
pre-test procedures (including engine and sampling system pre-
conditioning).
    (d) Begin the test by operating the locomotive over the pre-test 
portion of the cycle. For locomotives not equipped with catalysts, you 
may begin the test as soon as the engine reaches

[[Page 54]]

its lowest idle setting. For catalyst-equipped locomotives, you may 
begin the test in normal idle mode if the engine does not reach its 
lowest idle setting within 15 minutes. If you do start in normal idle, 
run the low idle mode after normal idle, then resume the specified mode 
sequence (without repeating the normal idle mode).
    (e) Start the test according to 40 CFR 1065.530.
    (1) Each test phase begins when operator demand is set to the first 
operator demand setting of each test phase of the ramped modal cycle. 
Each test phase ends when the time in mode is reached for the last mode 
in the test phase.
    (2) For PM emissions (and other batch sampling), the sample period 
over which emissions for the phase are averaged generally begins within 
10 seconds after the operator demand is changed to start the test phase 
and ends within 5 seconds of the sampling time for the test mode is 
reached. (see Table 1 to this section). You may ask to delay the start 
of the sample period to account for sample system residence times longer 
than 10 seconds.
    (3) Use good engineering judgment when transitioning between phases.
    (i) You should come as close as possible to simultaneously:
    (A) Ending batch sampling of the previous phase.
    (B) Starting batch sampling of the next phase.
    (C) Changing the operator demand to the notch setting for the first 
mode in the next phase.
    (ii) Avoid the following:
    (A) Overlapping batch sampling of the two phases.
    (B) An unnecessarily long delay before starting the next phase.
    (iii) For example, the following sequence would generally be 
appropriate:
    (A) End batch sampling for phase 2 after 240 seconds in notch 7.
    (B) Switch the operator demand to notch 8 one second later.
    (C) Begin batch sampling for phase 3 one second after switching to 
notch 8.
    (4) If applicable, begin the smoke test at the start of the first 
test phase of the applicable ramped modal cycle. Continue collecting 
smoke data until the completion of final test phase. Refer to Sec. 
1033.101 to determine applicability of the smoke standards and Sec. 
1033.525 for details on how to conduct a smoke test.
    (5) Proceed through each test phase of the applicable ramped modal 
cycle in the order specified until the test is completed.
    (6) If you must void a test phase you may repeat the phase. To do 
so, begin with a warm engine operating at the notch setting for the last 
mode in the previous phase. You do not need to repeat later phases if 
they were valid. (Note: you must report test results for all voided 
tests and test phases.)
    (7) Following the completion of the third test phase of the 
applicable ramped modal cycle, conduct the post sampling procedures 
specified in 40 CFR 1065.530.
    (f) Calculate your cycle-weighted brake-specific emission rates as 
follows:
    (1) For each test phase j:
    (i) Calculate emission rates (Eij) for each pollutant i 
as the total mass emissions divided by the total time in the phase.
    (ii) Calculate average power (Pj) as the total work 
divided by the total time in the phase.
    (2) For each pollutant, calculate your cycle-weighted brake-specific 
emission rate using the following equation, where wj is the 
weighting factor for phase j:
[GRAPHIC] [TIFF OMITTED] TR06MY08.010

    (g) The following tables define applicable ramped modal cycles for 
line-haul and switch locomotives:

                       Table 1 to Sec.  1033.520--Line-Haul Locomotive Ramped Modal Cycle
----------------------------------------------------------------------------------------------------------------
                RMC test phase                  Weighting     RMC     Time in             Notch setting
----------------------------------------------    factor     mode       mode    --------------------------------
                                              ---------------------  (seconds)
                Pre-test idle                                      -------------     Lowest idle setting \1\
                                                    NA        NA     600 to 900
----------------------------------------------------------------------------------------------------------------
Phase 1                                        ...........       A          600  Low Idle.\2\

[[Page 55]]

 
(Idle test)..................................        0.380       B          600  Normal Idle.
----------------------------------------------------------------------------------------------------------------
                                                Phase Transition
----------------------------------------------------------------------------------------------------------------
                                                                 C         1000  Dynamic Brake.\3\
                                                                 1          520  Notch 1.
Phase 2......................................        0.389       2          520  Notch 2.
                                                                 3          416  Notch 3.
                                                                 4          352  Notch 4.
                                                                 5          304  Notch 5.
----------------------------------------------------------------------------------------------------------------
                                                Phase Transition
----------------------------------------------------------------------------------------------------------------
                                                                 6          144  Notch 6.
Phase 3......................................        0.231       7          111  Notch 7.
                                                                 8          600  Notch 8.
----------------------------------------------------------------------------------------------------------------
\1\ See paragraph (d) of this section for alternate pre-test provisions.
\2\ Operate at normal idle for modes A and B if not equipped with multiple idle settings.
\3\ Operate at normal idle if not equipped with a dynamic brake.


                        Table 2 to Sec.  1033.520--Switch Locomotive Ramped Modal Cycle
----------------------------------------------------------------------------------------------------------------
                RMC test phase                  Weighting     RMC     Time in             Notch setting
----------------------------------------------    factor     mode       mode    --------------------------------
                                              ---------------------  (seconds)
                Pre-test idle                                      -------------     Lowest idle setting \1\
                                                    NA        NA     600 to 900
----------------------------------------------------------------------------------------------------------------
Phase 1                                        ...........       A          600  Low Idle.\2\
(Idle test)..................................        0.598       B          600  Normal Idle.
----------------------------------------------------------------------------------------------------------------
                                                Phase Transition
----------------------------------------------------------------------------------------------------------------
                                                                 1          868  Notch 1.
                                               ...........       2          861  Notch 2.
Phase 2......................................        0.377       3          406  Notch 3.
                                                                 4          252  Notch 4.
                                                                 5          252  Notch 5.
----------------------------------------------------------------------------------------------------------------
                                                Phase Transition
----------------------------------------------------------------------------------------------------------------
                                                                 6         1080  Notch 6.
Phase 3......................................        0.025       7          144  Notch 7.
                                                                 8          576  Notch 8.
----------------------------------------------------------------------------------------------------------------
\1\ See paragraph (d) of this section for alternate pre-test provisions.
\2\ Operate at normal idle for modes A and B if not equipped with multiple idle settings.


[73 FR 37197, June 30, 2008, as amended at 74 FR 8424, Feb. 24, 2009]



Sec. 1033.525  Smoke testing.

    This section describes the equipment and procedures for testing for 
smoke emissions when is required.
    (a) This section specifies how to measure smoke emissions using a 
full-flow, open path light extinction smokemeter. A light extinction 
meter consists of a built-in light beam that traverses the exhaust smoke 
plume that issues from exhaust the duct. The light beam must be at right 
angles to the axis of the plume. Align the light beam to go through the 
plume along the hydraulic diameter (defined in 1065.1001) of the exhaust 
stack. Where it is difficult to align the beam to have a path length 
equal to the hydraulic diameter (such as a long narrow rectangular 
duct), you may align the beam to have a different path length and 
correct it to be equivalent to a path length equal to the hydraulic 
diameter. The light extinction meter must meet the requirements of 
paragraph (b) of this section and the following requirements:

[[Page 56]]

    (1) Use an incandescent light source with a color temperature range 
of 2800K to 3250K, or a light source with a spectral peak between 550 
and 570 nanometers.
    (2) Collimate the light beam to a nominal diameter of 3 centimeters 
and an angle of divergence within a 6 degree included angle.
    (3) Use a photocell or photodiode light detector. If the light 
source is an incandescent lamp, use a detector that has a spectral 
response similar to the photopic curve of the human eye (a maximum 
response in the range of 550 to 570 nanometers, to less than four 
percent of that maximum response below 430 nanometers and above 680 
nanometers).
    (4) Attach a collimating tube to the detector with apertures equal 
to the beam diameter to restrict the viewing angle of the detector to 
within a 16 degree included angle.
    (5) Amplify the detector signal corresponding to the amount of 
light.
    (6) You may use an air curtain across the light source and detector 
window assemblies to minimize deposition of smoke particles on those 
surfaces, provided that it does not measurably affect the opacity of the 
plume.
    (7) Minimize distance from the optical centerline to the exhaust 
outlet; in no case may it be more than 3.0 meters. The maximum allowable 
distance of unducted space upstream of the optical centerline is 0.5 
meters. Center the full flow of the exhaust stream between the source 
and detector apertures (or windows and lenses) and on the axis of the 
light beam.
    (8) You may use light extinction meters employing substantially 
identical measurement principles and producing substantially equivalent 
results, but which employ other electronic and optical techniques.
    (b) All smokemeters must meet the following specifications:
    (1) A full-scale deflection response time of 0.5 second or less.
    (2) You may attenuate signal responses with frequencies higher than 
10 Hz with a separate low-pass electronic filter with the following 
performance characteristics:
    (i) Three decibel point: 10 Hz.
    (ii) Insertion loss: 0.0  0.5 dB.
    (iii) Selectivity: 12 dB down at 40 Hz minimum.
    (iv) Attenuation: 27 dB down at 40 Hz minimum.
    (c) Perform the smoke test by continuously recording smokemeter 
response over the entire locomotive test cycle in percent opacity to 
within one percent resolution and also simultaneously record operator 
demand set point (e.g., notch position). Compare the recorded opacities 
to the smoke standards applicable to your locomotive.
    (d) You may use a partial flow sampling smokemeter if you correct 
for the path length of your exhaust plume. If you use a partial flow 
sampling meter, follow the instrument manufacturer's installation, 
calibration, operation, and maintenance procedures.



Sec. 1033.530  Duty cycles and calculations.

    This section describes how to apply the duty cycle to measured 
emission rates to calculate cycle-weighted average emission rates.
    (a) Standard duty cycles and calculations. Tables 1 and 2 of this 
section show the duty cycle to use to calculate cycle-weighted average 
emission rates for locomotives equipped with two idle settings, eight 
propulsion notches, and at least one dynamic brake notch and tested 
using the Locomotive Test Cycle. Use the appropriate weighting factors 
for your locomotive application and calculate cycle-weighted average 
emissions as specified in 40 CFR part 1065, subpart G.

Table 1 to Sec.  1033.530--Standard Duty Cycle Weighting Factors for Calculating Emission Rates for Locomotives
                                           With Multiple Idle Settings
----------------------------------------------------------------------------------------------------------------
                                                                                         Line-haul
                                                                            Line-haul    weighting      Switch
               Notch setting                           Test mode            weighting     factors     weighting
                                                                             factors    (no dynamic    factors
                                                                                           brake)
----------------------------------------------------------------------------------------------------------------
Low Idle...................................  A...........................        0.190        0.190        0.299

[[Page 57]]

 
Normal Idle................................  B...........................        0.190        0.315        0.299
Dynamic Brake..............................  C...........................        0.125        (\1\)        0.000
Notch 1....................................  1...........................        0.065        0.065        0.124
Notch 2....................................  2...........................        0.065        0.065        0.123
Notch 3....................................  3...........................        0.052        0.052        0.058
Notch 4....................................  4...........................        0.044        0.044        0.036
Notch 5....................................  5...........................        0.038        0.038        0.036
Notch 6....................................  6...........................        0.039        0.039        0.015
Notch 7....................................  7...........................        0.030        0.030        0.002
Notch 8....................................  8...........................        0.162        0.162        0.008
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable.


Table 2 to Sec.  1033.530--Standard Duty Cycle Weighting Factors for Calculating Emission Rates for Locomotives
                                           With a Single Idle Setting
----------------------------------------------------------------------------------------------------------------
                                                                                         Line-haul
               Notch setting                           Test mode            Line-haul   (no dynamic     Switch
                                                                                           brake)
----------------------------------------------------------------------------------------------------------------
Normal Idle................................  A...........................        0.380        0.505        0.598
Dynamic Brake..............................  C...........................        0.125        (\1\)        0.000
Notch 1....................................  1...........................        0.065        0.065        0.124
Notch 2....................................  2...........................        0.065        0.065        0.123
Notch 3....................................  3...........................        0.052        0.052        0.058
Notch 4....................................  4...........................        0.044        0.044        0.036
Notch 5....................................  5...........................        0.038        0.038        0.036
Notch 6....................................  6...........................        0.039        0.039        0.015
Notch 7....................................  7...........................        0.030        0.030        0.002
Notch 8....................................  8...........................        0.162        0.162        0.008
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable.

    (b) Idle and dynamic brake notches. The test procedures generally 
require you to measure emissions at two idle settings and one dynamic 
brake, as follows:
    (1) If your locomotive is equipped with two idle settings and one or 
more dynamic brake settings, measure emissions at both idle settings and 
the worst case dynamic brake setting, and weight the emissions as 
specified in the applicable table of this section. Where it is not 
obvious which dynamic brake setting represents worst case, do one of the 
following:
    (i) You may measure emissions and power at each dynamic brake point 
and average them together.
    (ii) You may measure emissions and power at the dynamic brake point 
with the lowest power.
    (2) If your locomotive is equipped with two idle settings and is not 
equipped with dynamic brake, use a normal idle weighting factor of 0.315 
for the line-haul cycle. If your locomotive is equipped with only one 
idle setting and no dynamic brake, use an idle weighting factor of 0.505 
for the line-haul cycle.
    (c) Nonstandard notches or no notches. If your locomotive is 
equipped with more or less than 8 propulsion notches, recommend an 
alternate test cycle based on the in-use locomotive configuration. 
Unless you have data demonstrating that your locomotive will be operated 
differently from conventional locomotives, recommend weighting factors 
that are consistent with the power weightings of the specified duty 
cycle. For example, the average load factor for your recommended cycle 
(cycle-weighted power divided by rated power) should be equivalent to 
those of conventional locomotives. We may also allow the use of the 
standard power levels shown in Table 3 to this section for nonstandard 
locomotive testing subject to our prior approval.

[[Page 58]]

This paragraph (c) does not allow engines to be tested without 
consideration of the actual notches that will be used.

 Table 3 to Sec.  1033.530--Standard Notch Power Levels Expressed as a
                        Percentage of Rated Power
------------------------------------------------------------------------
                                                                Percent
------------------------------------------------------------------------
Normal Idle..................................................       0.00
Dynamic Brake................................................       0.00
Notch 1......................................................       4.50
Notch 2......................................................      11.50
Notch 3......................................................      23.50
Notch 4......................................................      35.00
Notch 5......................................................      48.50
Notch 6......................................................      64.00
Notch 7......................................................      85.00
Notch 8......................................................     100.00
------------------------------------------------------------------------

    (d) Optional Ramped Modal Cycle Testing. Tables 1 and 2 of Sec. 
1033.520 show the weighting factors to use to calculate cycle-weighted 
average emission rates for the applicable locomotive ramped modal cycle. 
Use the weighting factors for the ramped modal cycle for your locomotive 
application and calculate cycle-weighted average emissions as specified 
in 40 CFR part 1065, subpart G.
    (e) Automated Start-Stop. For a locomotive equipped with features 
that shut the engine off after prolonged periods of idle, multiply the 
measured idle mass emission rate over the idle portion of the applicable 
test cycles by a factor equal to one minus the estimated fraction 
reduction in idling time that will result in use from the shutdown 
feature. Do not apply this factor to the weighted idle power. 
Application of this adjustment is subject to our approval if the 
fraction reduction in idling time that is estimated to result from the 
shutdown feature is greater than 25 percent. This paragraph (e) does not 
apply if the locomotive is (or will be) covered by a separate 
certificate for idle control.
    (f) Multi-engine locomotives. This paragraph (f) applies for 
locomotives using multiple engines where all engines are identical in 
all material respects. In cases where we allow engine dynamometer 
testing, you may test a single engine consistent with good engineering 
judgment, as long as you test it at the operating points at which the 
engines will operate when installed in the locomotive (excluding 
stopping and starting). Weigh the results to reflect the power demand/
power-sharing of the in-use configuration for each notch setting.
    (g) Representative test cycles for freshly manufactured locomotives. 
As specified in this paragraph (g), manufacturers may be required to use 
an alternate test cycle for freshly manufactured Tier 3 and later 
locomotives.
    (1) If you determine that you are adding design features that will 
make the expected average in-use duty cycle for any of your freshly 
manufactured locomotive engine families significantly different from the 
otherwise applicable test cycle (including weighting factors), you must 
notify us and recommend an alternate test cycle that represents the 
expected average in-use duty cycle. You should also obtain preliminary 
approval before you begin collecting data to support an alternate test 
cycle. We will specify whether to use the default duty cycle, your 
recommended cycle, or a different cycle, depending on which cycle we 
believe best represents expected in-use operation.
    (2) The provisions of this paragraph (g) apply differently for 
different types of locomotives, as follows:
    (i) For Tier 4 and later line-haul locomotives, use the cycle 
required by (g)(1) of this section to show compliance with the line-haul 
cycle standards.
    (ii) For Tier 3 and later switch locomotives, use the cycle required 
by (g)(1) of this section to show compliance with the switch cycle 
standards.
    (iii) For Tier 3 line-haul locomotives, if we specify an alternate 
cycle, use it to show compliance with the line-haul cycle standards. If 
you include the locomotives in the ABT program of subpart H of this 
part, calculate line-haul cycle credits (positive or negative) using the 
alternate cycle and the line-haul cycle standards. Your locomotive is 
deemed to also generate an equal amount of switch cycle credits.
    (3) For all locomotives certified using an alternate cycle, include 
a description of the cycle in the owners manual such that the locomotive 
can be remanufactured using the same cycle.
    (4) For example, if your freshly manufactured line-haul locomotives 
are

[[Page 59]]

equipped with load control features that modify how the locomotive will 
operate when it is in a consist, and such features will cause the 
locomotives to operate differently from the otherwise applicable line-
haul cycle, we may require you to certify using an alternate cycle.
    (5) See paragraph (h) of this section for cycle-changing design 
features that also result in energy savings.
    (h) Calculation adjustments for energy-saving design features. The 
provisions of this paragraph (h) apply for locomotives equipped with new 
energy-saving locomotive design features. They do not apply for features 
that only improve the engine's brake-specific fuel consumption. They 
also do not apply for features that were commonly incorporated in 
locomotives before 2008. See paragraph (h)(6) of this section for 
provisions related to determining whether certain features are 
considered to have been commonly incorporated in locomotives before 
2008.
    (1) Manufacturers/remanufacturers choosing to adjust emissions under 
this paragraph (h) must do all of the following for certification:
    (i) Describe the energy-saving features in your application for 
certification.
    (ii) Describe in your installation instruction and/or maintenance 
instructions all steps necessary to utilize the energy-saving features.
    (2) If your design feature will also affect the locomotives' duty 
cycle, you must comply with the requirements of paragraph (g) of this 
section.
    (3) Calculate the energy savings as follows:
    (i) Estimate the expected mean in-use fuel consumption rate (on a 
BTU per ton-mile basis) with and without the energy saving design 
feature, consistent with the specifications of paragraph (h)(4) of this 
section. The energy savings is the ratio of fuel consumed from a 
locomotive operating with the new feature to fuel consumed from a 
locomotive operating without the feature under identical conditions. 
Include an estimate of the 80 percent confidence interval for your 
estimate of the mean and other statistical parameters we specify.
    (ii) Your estimate must be based on in-use operating data, 
consistent with good engineering judgment. Where we have previously 
certified your design feature under this paragraph (h), we may require 
you to update your analysis based on all new data that are available. 
You must obtain approval before you begin collecting operational data 
for this purpose.
    (iii) We may allow you to consider the effects of your design 
feature separately for different route types, regions, or railroads. We 
may require that you certify these different locomotives in different 
engine families and may restrict their use to the specified 
applications.
    (iv) Design your test plan so that the operation of the locomotives 
with and without is as similar as possible in all material aspects 
(other than the design feature being evaluated). Correct all data for 
any relevant differences, consistent with good engineering judgment.
    (v) Do not include any brake-specific energy savings in your 
calculated values. If it is not possible to exclude such effects from 
your data gathering, you must correct for these effects, consistent with 
good engineering judgment.
    (4) Calculate adjustment factors as described in this paragraph 
(h)(4). If the energy savings will apply broadly, calculate and apply 
the adjustment on a cycle-weighted basis. Otherwise, calculate and apply 
the adjustment separately for each notch. To apply the adjustment, 
multiply the emissions (either cycle-weighted or notch-specific, as 
applicable) by the adjustment. Use the lower bound of the 80 percent 
confidence interval of the estimate of the mean as your estimated energy 
savings rate. We may cap your energy savings rate for this paragraph 
(h)(4) at 80 percent of the estimate of the mean. Calculate the emission 
adjustment factors as:

AF = 1.000 - (energy savings rate)

    (5) We may require you to collect and report data from locomotives 
we allow you to certify under this paragraph (h) and to recalculate the 
adjustment factor for future model years based on such data.

[[Page 60]]

    (6) Features that are considered to have not been commonly 
incorporated in locomotives before 2008 include but are not limited to 
those identified in this paragraph (h)(6).
    (i) Electronically controlled pneumatic (ECP) brakes, computerized 
throttle management control, and advanced hybrid technology were not 
commonly incorporated in locomotives before 2008. Manufacturers may 
claim full credit for energy savings that result from applying these 
features to freshly manufactured and/or remanufactured locomotives.
    (ii) Distributed power systems that use radio controls to optimize 
operation of locomotives in the middle and rear of a train were commonly 
incorporated in some but not all locomotives in 2008. Manufacturers may 
claim credit for incorporating these features into locomotives as 
follows:
    (A) Manufacturers may claim prorated credit for incorporating 
distributed power systems in freshly manufactured locomotives. Multiply 
the energy saving rate by 0.50 when calculating the adjustment factor:

AF = 1.000-(energy savings rate) x (0.50)

    (B) Manufacturers may claim full credit for retrofitting distributed 
power systems in remanufactured locomotives.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59190, Oct. 8, 2008; 75 
FR 22985, Apr. 30, 2010]



Sec. 1033.535  Adjusting emission levels to account for infrequently 

regenerating aftertreatment devices.

    This section describes how to adjust emission results from 
locomotives using aftertreatment technology with infrequent regeneration 
events that occur during testing. See paragraph (e) of this section for 
how to adjust ramped modal testing. See paragraph (f) of this section 
for how to adjust discrete-mode testing. For this section, 
``regeneration'' means an intended event during which emission levels 
change while the system restores aftertreatment performance. For 
example, hydrocarbon emissions may increase temporarily while oxidizing 
accumulated particulate matter in a trap. Also for this section, 
``infrequent'' refers to regeneration events that are expected to occur 
on average less than once per sample period.
    (a) Developing adjustment factors. Develop an upward adjustment 
factor and a downward adjustment factor for each pollutant based on 
measured emission data and observed regeneration frequency. Adjustment 
factors should generally apply to an entire engine family, but you may 
develop separate adjustment factors for different configurations within 
an engine family. If you use adjustment factors for certification, you 
must identify the frequency factor, F, from paragraph (b) of this 
section in your application for certification and use the adjustment 
factors in all testing for that engine family. You may use carryover or 
carry-across data to establish adjustment factors for an engine family, 
as described in Sec. 1033.235, consistent with good engineering 
judgment. All adjustment factors for regeneration are additive. 
Determine adjustment factors separately for different test segments as 
described in paragraphs (e) and (f) of this section. You may use either 
of the following different approaches for locomotives that use 
aftertreatment with infrequent regeneration events:
    (1) You may disregard this section if you determine that 
regeneration does not significantly affect emission levels for an engine 
family (or configuration) or if it is not practical to identify when 
regeneration occurs. If you do not use adjustment factors under this 
section, your locomotives must meet emission standards for all testing, 
without regard to regeneration.
    (2) You may ask us to approve an alternate methodology to account 
for regeneration events. We will generally limit approval to cases in 
which your locomotives use aftertreatment technology with extremely 
infrequent regeneration and you are unable to apply the provisions of 
this section.
    (b) Calculating average emission factors. Calculate the average 
emission factor (EFA) based on the following equation:

EFA = (F)(EFH) + (1-F)(EFL)

Where:

F = the frequency of the regeneration event during normal in-use 
operation, expressed in terms of the fraction of equivalent tests

[[Page 61]]

during which the regeneration occurs. You may determine F from in-use 
operating data or running replicate tests. For example, if you observe 
that the regeneration occurs 125 times during 1000 MW-hrs of operation, 
and your locomotive typically accumulates 1 MW-hr per test, F would be 
(125) / (1000) x (1) = 0.125.
EFH = measured emissions from a test segment in which the regeneration 
occurs.
EFL = measured emissions from a test segment in which the regeneration 
does not occur.

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

UAF = EFA-EFL

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

DAF = EFH-EFA

    (d) Sample calculation. If EFL is 0.10 g/bhp-hr, EFH is 0.50 g/ bhp-
hr, and F is 0.10 (the regeneration occurs once for each ten tests), 
then:

EFA = (0.10)(0.50 g/ bhp-hr) + (1.00-0.10)(0.10 g/ bhp-hr) = 0.14 g/ 
    bhp-hr.
UAF = 0.14 g/ bhp-hr-0.10 g/ bhp-hr = 0.04 g/ bhp-hr.
DAF = 0.50 g/ bhp-hr-0.14 g/ bhp-hr = 0.36 g/ bhp-hr

    (e) Ramped modal testing. Develop separate adjustment factors for 
each test phase. If a regeneration has started but has not been 
completed when you reach the end of a test phase, use good engineering 
judgment to reduce your downward adjustments to be proportional to the 
emission impact that occurred in the test phases.
    (f) Discrete-mode testing. Develop separate adjustment factors for 
each test mode. If a regeneration has started but has not been completed 
when you reach the end of the sampling time for a test mode extend the 
sampling period for that mode until the regeneration is completed.



                 Subpart G_Special Compliance Provisions



Sec. 1033.601  General compliance provisions.

    Locomotive manufacturer/remanufacturers, as well as owners and 
operators of locomotives subject to the requirements of this part, and 
all other persons, must observe the provisions of this part, the 
requirements and prohibitions in 40 CFR part 1068, and the provisions of 
the Clean Air Act. The provisions of 40 CFR part 1068 apply for 
locomotives as specified in that part, except as otherwise specified in 
this section.
    (a) Meaning of terms. When used in 40 CFR part 1068, apply meanings 
for specific terms as follows:
    (1) ``Manufacturer'' means manufacturer and/or remanufacturer.
    (2) ``Date of manufacture'' means date of original manufacture for 
freshly manufactured locomotives and the date on which a remanufacture 
is completed for remanufactured engines.
    (b) Engine rebuilding. The provisions of 40 CFR 1068.120 do not 
apply when remanufacturing locomotives under a certificate of conformity 
issued under this part.
    (c) Exemptions. (1) The exemption provisions of 40 CFR 1068.240 
(i.e., exemptions for replacement engines) do not apply for domestic or 
imported locomotives. (Note: You may introduce into commerce freshly 
manufactured replacement engines under this part, provided the 
locomotives into which they are installed are covered by a certificate 
of conformity.)
    (2) The exemption provisions of 40 CFR 1068.250 and 1068.255 (i.e., 
exemptions for hardship relief) do not apply for domestic or imported 
locomotives. See Sec. 1033.620 for provisions related to hardship 
relief.
    (3) The exemption provisions of 40 CFR 1068.261 (i.e., exemptions 
for delegated assembly) do not apply for domestic or imported 
locomotives, except as specified in Sec. 1033.630.
    (4) The provisions for importing engines and equipment under the 
identical configuration exemption of 40

[[Page 62]]

CFR 1068.315(i) do not apply for locomotives.
    (5) The provisions for importing engines and equipment under the 
ancient engine exemption of 40 CFR 1068.315(j) do not apply for 
locomotives.
    (d) SEAs, defect reporting, and recall. The provisions of 40 CFR 
part 1068, subpart E (i.e., SEA provisions) do not apply for 
locomotives. Except as noted in this paragraph (d), the provisions of 40 
CFR part 1068, subpart F, apply to certificate holders for locomotives 
as specified for manufacturers in that part.
    (1) When there are multiple persons meeting the definition of 
manufacturer or remanufacturer, each person meeting the definition of 
manufacturer or remanufacturer must comply with the requirements of 40 
CFR part 1068, subpart F, as needed so that the certificate holder can 
fulfill its obligations under those subparts.
    (2) The defect investigation requirements of 40 CFR 1068.501(a)(5), 
(b)(1) and (b)(2) do not apply for locomotives. Instead, use good 
engineering judgment to investigate emission-related defects consistent 
with normal locomotive industry practice for investigating defects. You 
are not required to track parts shipments as indicators of possible 
defects.
    (e) Introduction into commerce. The placement of a new locomotive or 
new locomotive engine back into service following remanufacturing is a 
violation of 40 CFR 1068.101(a)(1), unless it has a valid certificate of 
conformity for its model year and the required label.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59190, Oct. 8, 2008; 75 
FR 22986, Apr. 30, 2010]



Sec. 1033.610  Small railroad provisions.

    In general, the provisions of this part apply for all locomotives, 
including those owned by Class II and Class III railroads. This section 
describes how these provisions apply for railroads meeting the 
definition of ``small railroad'' in Sec. 1033.901. (Note: The term 
``small railroad'' excludes all Class II railroads and some Class III 
railroads, such as those owned by large parent companies.)
    (a) Locomotives become subject to the provisions of this part when 
they become ``new'' as defined in Sec. 1033.901. Under that definition, 
a locomotive is ``new'' when first assembled, and generally becomes 
``new'' again when remanufactured. As an exception to this general 
concept, locomotives that are owned and operated by railroads meeting 
the definition of ``small railroad'' in Sec. 1033.901 do not become 
``new'' when remanufactured, unless they were previously certified to 
EPA emission standards. Certificate holders may require written 
confirmation from the owner/operator that the locomotive qualifies as a 
locomotive that is owned and operated by a small railroad. Such written 
confirmation to a certificate holder is deemed to also be a submission 
to EPA and is thus subject to the reporting requirements of 40 CFR 
1068.101.
    (b) The provisions of subpart I of this part apply to all owners and 
operators of locomotives subject to this part 1033. However, the 
regulations of that subpart specify some provisions that apply only for 
Class I freight railroads, and others that apply differently to Class I 
freight railroads and other railroads.
    (c) We may exempt new locomotives that are owned or operated by 
small railroads from the prohibition against remanufacturing a 
locomotive without a certificate of conformity as specified in this 
paragraph (c). This exemption is only available in cases where no 
certified remanufacturing system is available for the locomotive. For 
example, it is possible that no remanufacturer will certify a system for 
very old locomotive models that comprise a tiny fraction of the fleet 
and that are remanufactured infrequently. We will grant the exemption in 
all cases in which no remanufacturing system has been certified for the 
applicable engine family and model year. We may also grant an exemption 
where we determine that a certified system is unavailable. We may 
consider the issue of excessive costs in determining the availability of 
certified systems. If we grant this exemption for a previously certified 
locomotive, you are required to return the locomotive to its previously 
certified configuration. Send

[[Page 63]]

your request for such exemptions to the Designated Compliance Officer.
    (d) Non-Class I railroads that do not meet the definition of ``small 
railroad'' in Sec. 1033.901 may ask that their remanufactured 
locomotives be excluded from the definition of ``new'' in Sec. 1033.901 
in cases where no certified remanufacturing system is available for the 
locomotive. We will grant the exemption in all cases in which no 
remanufacturing system has been certified for the applicable engine 
family and model year. If we grant this exemption for a previously 
certified locomotive, you are required to return the locomotive to its 
previously certified configuration. Send your request for such 
exemptions to the Designated Compliance Officer.



Sec. 1033.615  Voluntarily subjecting locomotives to the standards of this part.

    The provisions of this section specify the cases in which an owner 
or manufacturer of a locomotive or similar piece of equipment can 
subject it to the standards and requirements of this part. Once the 
locomotive or equipment becomes subject to the locomotive standards and 
requirements of this part, it remains subject to the standards and 
requirements of this part for the remainder of its service life.
    (a) Equipment excluded from the definition of ``locomotive''. (1) 
Manufacturers/remanufacturers of equipment that is excluded from the 
definition of ``locomotive'' because of its total power, but would 
otherwise meet the definition of locomotive may ask to have it 
considered to be a locomotive. To do this, submit an application for 
certification as specified in subpart C of this part, explaining why it 
should be considered to be a locomotive. If we approve your request, it 
will be deemed to be a locomotive for the remainder of its service life.
    (2) In unusual circumstances, we may deem other equipment to be 
locomotives (at the request of the owner or manufacturer/remanufacturer) 
where such equipment does not conform completely to the definition of 
locomotive, but is functionally equivalent to a locomotive.
    (b) Locomotives excluded from the definition of ``new''. Owners of 
remanufactured locomotives excluded from the definition of ``new'' in 
Sec. 1033.901 under paragraph (2) of that definition may choose to 
upgrade their locomotives to subject their locomotives to the standards 
and requirements of this part by complying with the specifications of a 
certified remanufacturing system, including the labeling specifications 
of Sec. 1033.135.



Sec. 1033.620  Hardship provisions for manufacturers and remanufacturers.

    (a) If you qualify for the economic hardship provisions specified in 
40 CFR 1068.245, we may approve a period of delayed compliance for up to 
one model year total.
    (b) The provisions of this paragraph (b) are intended to address 
problems that could occur near the date on which more stringent emission 
standards become effective, such as the transition from the Tier 2 
standards to the Tier 3 standards for line-haul locomotives on January 
1, 2012.
    (1) In appropriate extreme and unusual circumstances that are 
clearly outside the control of the manufacturer and could not have been 
avoided by the exercise of prudence, diligence, and due care, we may 
permit you, for a brief period, to introduce into commerce locomotives 
which do not comply with the applicable emission standards if all of the 
following conditions apply:
    (i) You cannot reasonably manufacture the locomotives in such a 
manner that they would be able to comply with the applicable standards.
    (ii) The manufacture of the locomotives was substantially completed 
prior to the applicability date of the standards from which you seek the 
relief. For example, you may not request relief for a locomotive that 
has been ordered, but for which you will not begin the assembly process 
prior to the applicability date of the standards. On the other hand, we 
would generally consider completion of the underframe weldment to be a 
substantial part of the manufacturing process.

[[Page 64]]

    (iii) Manufacture of the locomotives was previously scheduled to be 
completed at such a point in time that locomotives would have been 
included in the previous model year, such that they would have been 
subject to less stringent standards, and that such schedule was feasible 
under normal conditions.
    (iv) You demonstrate that the locomotives comply with the less 
stringent standards that applied to the previous model year's production 
described in paragraph (b)(1)(iii) of this section, as prescribed by 
subpart C of this part (i.e., that the locomotives are identical to 
locomotives certified in the previous model year).
    (v) You exercised prudent planning, were not able to avoid the 
violation, and have taken all reasonable steps to minimize the extent of 
the nonconformity.
    (vi) We approve your request before you introduce the locomotives 
into commerce.
    (2) You must notify us as soon as you become aware of the extreme or 
unusual circumstances.
    (3)(i) Include locomotives for which we grant relief under this 
section in the engine family for which they were originally intended to 
be included.
    (ii) Where the locomotives are to be included in an engine family 
that was certified to an FEL above the applicable standard, you must 
reserve credits to cover the locomotives covered by this allowance and 
include the required information for these locomotives in the end-of-
year report required by subpart H of this part.
    (c) In granting relief under this section, we may also set other 
conditions as appropriate, such as requiring payment of fees to negate 
an economic gain that such relief would otherwise provide.



Sec. 1033.625  Special certification provisions for non-locomotive-specific engines.

    You may certify freshly manufactured or remanufactured locomotives 
using non-locomotive-specific engines (as defined in Sec. 1033.901) 
using the normal certification procedures of this part. Locomotives 
certified in that way are generally treated the same as other 
locomotives, except where specified otherwise. The provisions of this 
section provide for design certification to the locomotive standards in 
this part for locomotives using engines included in engine families 
certified under 40 CFR part 1039 (or part 89) in limited circumstances.
    (a) Remanufactured or freshly manufactured switch locomotives 
powered by non-locomotive-specific engines may be certified by design 
without the test data required by Sec. 1033.235 if all of the following 
are true:
    (1) Before being installed in the locomotive, the engines were 
covered by a certificate of conformity issued under 40 CFR Part 1039 (or 
part 89) that is effective for the calendar year in which the 
manufacture or remanufacture occurs. You may use engines certified 
during the previous years if they were subject to the same standards. 
You may not make any modifications to the engines unless we approve 
them.
    (2) The engines were certified to standards that are numerically 
lower than the applicable locomotive standards of this part.
    (3) More engines are reasonably projected to be sold and used under 
the certificate for non-locomotive use than for use in locomotives.
    (4) The number of such locomotives certified under this section does 
not exceed 30 in any three-year period. We may waive this sales limit 
for locomotive models that have previously demonstrated compliance with 
the locomotive standards of Sec. 1033.101 in-use.
    (5) We approved the application as specified in paragraph (d) of 
this section.
    (b) To certify your locomotives by design under this section, submit 
your application as specified in Sec. 1033.205, with the following 
exceptions:
    (1) Include the following instead of the locomotive test data 
otherwise required by Sec. 1033.205:
    (i) A description of the engines to be used, including the name of 
the engine manufacturer and engine family identifier for the engines.
    (ii) A brief engineering analysis describing how the engine's 
emission controls will function when installed in the locomotive 
throughout the locomotive's useful life.

[[Page 65]]

    (iii) The emission data submitted under 40 CFR part 1039 (or part 
89).
    (2) You may separately submit some of the information required by 
Sec. 1033.205, consistent with the provisions of Sec. 1033.1(d). For 
example, this may be an appropriate way to submit detailed information 
about proprietary engine software. Note that this allowance to 
separately submit some of the information required by Sec. 1033.205 is 
also available for applications not submitted under this section.
    (c) Locomotives certified under this section are subject to all the 
requirements of this part except as specified in paragraph (b) of this 
section. The engines used in such locomotives are not considered to be 
included in the otherwise applicable engines family of 40 CFR part 1039 
(or part 89).
    (d) We will approve or deny the application as specified in subpart 
C of this part. For example, we will deny your application for 
certification by design under this section in any case where we have 
evidence that your locomotives will not conform to the requirements of 
this part throughout their useful lives.

[73 FR 37197, June 30, 2008, as amended at 75 FR 22986, Apr. 30, 2010]



Sec. 1033.630  Staged-assembly and delegated assembly exemptions.

    (a) Staged assembly. You may ask us to provide a temporary exemption 
to allow you to complete production of your engines and locomotives at 
different facilities, as long as you maintain control of the engines 
until they are in their certified configuration. We may require you to 
take specific steps to ensure that such locomotives are in their 
certified configuration before reaching the ultimate purchaser. You may 
request an exemption under this paragraph (a) in your application for 
certification, or in a separate submission. If you include your request 
in your application, your exemption is approved when we grant your 
certificate. Note that no exemption is needed to ship an engine that has 
been assembled in its certified configuration, is properly labeled, and 
will not require an aftertreatment device to be attached when installed 
in the locomotive.
    (b) Delegated assembly. This paragraph (b) applies where the engine 
manufacturer/remanufacturer does not complete assembly of the 
locomotives and the engine is shipped after being manufactured or 
remanufactured (partially or completely). The provisions of this 
paragraph (b) apply differently depending on who holds the certificate 
of conformity and the state of the engine when it is shipped. You may 
request an exemption under this paragraph (b) in your application for 
certification, or in a separate submission. If you include your request 
in your application, your exemption is approved when we grant your 
certificate. A manufacturer/remanufacturer may request an exemption 
under 40 CFR 1068.261 instead of under this section.
    (1) In cases where an engine has been assembled in its certified 
configuration, properly labeled, and will not require an aftertreatment 
device to be attached when installed in the locomotive, no exemption is 
needed to ship the engine. You do not need an exemption to ship engines 
without specific components if they are not emission-related components 
identified in Appendix I of 40 CFR part 1068.
    (2) In cases where an engine has been properly labeled by the 
certificate holder and assembled in its certified configuration except 
that it does not yet have a required aftertreatment device, an exemption 
is required to ship the engine. You may ask for this exemption if you do 
all of the following:
    (i) You note on the Engine Emission Control Information label that 
the locomotive must include the aftertreatment device to be covered by 
the certificate.
    (ii) You make clear in your emission-related installation 
instructions that installation of the aftertreatment device is required 
for the locomotive to be covered by the certificate.
    (3) In cases where an engine will be shipped to the certificate 
holder in an uncertified configuration, an exemption is required to ship 
the engine. You may ask for this exemption under 40 CFR 1068.262.
    (c) Other exemptions. In unusual circumstances, you may ask us to 
provide an exemption for an assembly process that is not covered by the 
provisions of

[[Page 66]]

paragraphs (a) and (b) of this section. We will make the exemption 
conditional based on you complying with requirements that we determine 
are necessary to ensure that the locomotives are assembled in their 
certified configuration before being placed (back) into service.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59190, Oct. 8, 2008]



Sec. 1033.640  Provisions for repowered and refurbished locomotives.

    (a) The provisions of this section apply for locomotives that are 
produced from an existing locomotive so that the new locomotive contains 
both previously used parts and parts that have never been used before.
    (1) Repowered locomotives are used locomotives in which a freshly 
manufactured propulsion engine is installed. As described in this 
section, a repowered locomotive is deemed to be either remanufactured or 
freshly manufactured, depending on the total amount of unused parts on 
the locomotive. It may also be deemed to be a refurbished locomotive.
    (2) Refurbished locomotives are locomotives that contain more unused 
parts than previously used parts. As described in this section, a 
locomotive containing more unused parts than previously used parts may 
be deemed to be either remanufactured or freshly manufactured, depending 
on the total amount of unused parts on the locomotive. Note that Sec. 
1033.901 defines refurbishment of a pre-1973 locomotive to be an upgrade 
of the locomotive.
    (b) A single existing locomotive cannot be divided into parts and 
combined with new parts to create more than one remanufactured 
locomotive. However, any number of locomotives can be divided into parts 
and combined with new parts to create more than one remanufactured 
locomotive, provided the number of locomotives created (remanufactured 
and freshly manufactured) does not exceed the number of locomotives that 
were disassembled.
    (c) You may determine the relative amount of previously used parts 
consistent with the specifications of the Federal Railroad 
Administration. Otherwise, determine the relative amount of previously 
used parts as follows:
    (1) Identify the parts in the fully assembled locomotive that have 
been previously used and those that have never been used before.
    (2) Weight the unused parts and previously used parts by the dollar 
value of the parts. For example, a single part valued at $1200 would 
count the same as six parts valued at $200 each. Group parts by system 
where possible (such as counting the engine as one part) if either all 
the parts in that system are used or all the parts in that system are 
unused. Calculate the used part values using dollar values from the same 
year as the new parts.
    (3) Sum the values of the unused parts. Also sum the values of the 
previously used parts. The relative fraction of used parts is the total 
value of previously used parts divided by the combined value of the 
unused parts and previously used parts.
    (c) If the weighted fraction of the locomotive that is comprised of 
previously used parts is greater than or equal to 25 percent, then the 
locomotive is considered to be a remanufactured locomotive and retains 
its original date of manufacture. Note, however, that if the weighted 
fraction of the locomotive that is comprised of previously used parts is 
less than 50 percent, then the locomotive is also considered to be a 
refurbished locomotive.
    (d) If the weighted fraction of the locomotive that is comprised of 
previously used parts is less than 25 percent, then the locomotive is 
deemed to be a freshly manufactured locomotive and the date of original 
manufacture is the most recent date on which the locomotive was 
assembled using less than 25 percent previously used parts. For example:
    (1) If you produce a new locomotive that includes a used frame, but 
all other parts are unused, then the locomotive would likely be 
considered to be a freshly manufactured locomotive because the value of 
the frame would likely be less than 25 percent of the total value of the 
locomotive. Its date of original manufacture would be the date on which 
you complete its assembly.

[[Page 67]]

    (2) If you produce a new locomotive by replacing the engine in a 
1990 locomotive with a freshly manufactured engine, but all other parts 
are used, then the locomotive would likely be considered to be a 
remanufactured locomotive and its date of original manufacture is the 
date on which assembly was completed in 1990. (Note: such a locomotive 
would also be considered to be a repowered locomotive.)
    (e) Locomotives containing used parts that are deemed to be freshly 
manufactured locomotives are subject to the same provisions as all other 
freshly manufactured locomotives. Other refurbished locomotives are 
subject to the same provisions as other remanufactured locomotives, with 
the following exceptions:
    (1) Switch locomotives. (i) Prior to January 1, 2015, remanufactured 
Tier 0 switch locomotives that are deemed to be refurbished are subject 
to the Tier 0 line-haul cycle and switch cycle standards. Note that this 
differs from the requirements applicable to other Tier 0 switch 
locomotives, which are not subject to the Tier 0 line-haul cycle 
standards.
    (ii) Beginning January 1, 2015, remanufactured Tier 3 and earlier 
switch locomotives that are deemed to be refurbished are subject to the 
Tier 3 switch standards.
    (2) Line-haul locomotives. Remanufactured line-haul locomotives that 
are deemed to be refurbished are subject to the same standards as 
freshly manufactured line-haul locomotives, except that line-haul 
locomotives with rated power less than 3000 hp that are refurbished 
before January 1, 2015 are subject to the same standards as refurbished 
switch locomotives under paragraph (e)(1)(i) of this section. However, 
line-haul locomotives less than 3000 hp may not generate emission 
credits relative to the standards specified in paragraph (e)(1)(i) of 
this section.
    (3) Labels for switch and line-haul locomotives. Remanufacturers 
that refurbish a locomotive must add a secondary locomotive label that 
includes the following:
    (i) The label heading: ``REFURBISHED LOCOMOTIVE EMISSION CONTROL 
INFORMATION.''
    (ii) The statement identifying when the locomotive was refurbished 
and what standards it is subject to, as follows: ``THIS LOCOMOTIVE WAS 
REFURBISHED IN [year of refurbishment] AND MUST COMPLY WITH THE TIER 
[applicable standard level] EACH TIME THAT IT IS REMANUFACTURED, EXCEPT 
AS ALLOWED BY 40 CFR 1033.750.''.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59190, Oct. 8, 2008; 74 
FR 8425, Feb. 24, 2009]

    Editorial Note: At 73 FR 37197, June 30, 2008, Sec. 1033.640 was 
added. This amendment included two paragraphs (c) in the original text.



Sec. 1033.645  Non-OEM component certification program.

    This section describes a voluntary program that allows you to get 
EPA approval of components you manufacture for use during 
remanufacturing.
    (a) Applicability. This section applies only for components that are 
commonly replaced during remanufacturing. It does not apply for other 
types of components that are replaced during a locomotive's useful life, 
but not typically replaced during remanufacture. Certified components 
may be used for remanufacturing or other maintenance.
    (1) The following components are eligible for approval under this 
section:
    (i) Cylinder liners.
    (ii) Pistons.
    (iii) Piston rings.
    (iv) Heads
    (v) Fuel injectors.
    (vi) Turbochargers
    (vii) Aftercoolers and intercoolers.
    (2) Catalysts and electronic controls are not eligible for approval 
under this section.
    (3) We may determine that other types of components can be certified 
under this section, consistent with good engineering judgment.
    (b) Approval. To obtain approval, submit your request to the 
Designated Compliance Officer.
    (1) Include all of the following in your request:
    (i) A description of the component(s) for which you are requesting 
approval.
    (ii) A list of all engine/locomotive models and engine families for 
which

[[Page 68]]

your component would be used. You may exclude models that are not 
subject to our standards or will otherwise not be remanufactured under a 
certificate of conformity.
    (iii) A copy of the maintenance instructions for engines using your 
component. You may reference the other certificate holder's maintenance 
instructions in your instructions. For example, your instructions may 
specify to follow the other certificate holder's instructions in 
general, but list one or more exceptions to address the specific 
maintenance needs of your component.
    (iv) An engineering analysis (including test data in some cases) 
demonstrating to us that your component will not cause emissions to 
increase. The analysis must address both low-hour and end-of-useful life 
emissions. The amount of information required for this analysis is less 
than is required to obtain a certificate of conformity under subpart C 
of this part and will vary depending on the type of component being 
certified.
    (v) The following statement signed by an authorized representative 
of your company: We submit this request under 40 CFR 1033.645. All the 
information in this report is true and accurate to the best of my 
knowledge. I know of the penalties for violating the Clean Air Act and 
the regulations. (Authorized Company Representative)
    (2) If we determine that there is reasonable technical basis to 
believe that your component is sufficiently equivalent that it will not 
increase emissions, we will approve your request and you will be a 
certificate holder for your components with respect to actual emissions 
performance for all locomotives that use those components (in accordance 
with this section).
    (c) Liability. Being a certificate holder under this section means 
that if in-use testing indicates that a certified locomotive using one 
or more of your approved components does not comply with an applicable 
emission standard, we will presume that you and other certificate 
holders are liable for the noncompliance. However, we will not hold you 
liable in cases where you convince us that your components did not cause 
the noncompliance. Conversely, we will not hold other certificate 
holders liable for noncompliance caused solely by your components. You 
are also subject to the warranty and defect reporting requirements of 
this part for your certified components. Other requirements of this part 
apply as specified in Sec. 1033.1.
    (d) In-use testing. Locomotives containing your components must be 
tested according to the provisions of this paragraph (d).
    (1) Except as specified in paragraph (d)(5) of this section, you 
must test at least one locomotive if 250 locomotives use your component 
under this section. You must test one additional locomotive for the next 
additional 500 locomotives that use your component under this section. 
After that, we may require you to test one additional locomotive for 
each additional 1000 locomotives that use your component under this 
section. These numbers apply across model years. For example, if your 
component is used in 125 remanufactures per year under this section, you 
must test one of the first 250 locomotives, one of the next 500 
locomotives, and up to one every eight years after that. Do not count 
locomotives that use your components but are not covered by this 
section.
    (2) Except for the first locomotive you test for a specific 
component under this section, locomotives tested under this paragraph 
(d) must be past the half-way point of the useful life in terms of MW-
hrs. For the first locomotive you test, select a locomotive that has 
operated between 25 and 50 percent of its useful life.
    (3) Unless we approve a different schedule, you must complete 
testing and report the results to us within 180 days of the earliest 
point at which you could complete the testing based on the hours of 
operation accumulated by the locomotives. For example, if 250 or more 
locomotives use your part under this section, and the first of these to 
reach 25 percent of its useful life does so on March 1st of a given 
year, you must complete testing of one of the first 250 locomotives and 
report to us by August 28th of that year.
    (4) Unless we approve different test procedures, you must test the 
locomotive according to the procedures specified in subpart F of this 
part.

[[Page 69]]

    (5) If any locomotives fail to meet all standards, we may require 
you to test one additional locomotive for each locomotive that fails. 
You may choose to accept that your part is causing an emission problem 
rather than continuing testing. You may also test additional locomotives 
at any time. We will consider failure rates, average emission levels and 
the existence of any defects among other factors in determining whether 
to pursue remedial action. We may order a recall pursuant to 40 CFR part 
1068 before you complete testing additional locomotives.
    (6) You may ask us to allow you to rely on testing performed by 
others instead of requiring you to perform testing. For example, if a 
railroad tests a locomotive with your component as part of its testing 
under Sec. 1033.810, you may ask to submit those test data as 
fulfillment of your test obligations under this paragraph (d). If a 
given test locomotive uses different components certified under this 
section that were manufactured by different manufacturers (such as rings 
from one manufacturer and cylinder liners from another manufacturer), a 
single test of it may be counted towards both manufacturers' test 
obligations. In unusual circumstances, you may also ask us to grant you 
hardship relief from the testing requirements of this paragraph (d). In 
determining whether to grant you relief, we will consider all relevant 
factors including the extent of the financial hardship to your company 
and whether the test data are available from other sources, such as 
testing performed by a railroad.
    (e) Components certified under this section may be used when 
remanufacturing Category 2 engines under 40 CFR part 1042.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59190, Oct. 8, 2008; 74 
FR 8425, Feb. 24, 2009]



Sec. 1033.650  Incidental use exemption for Canadian and Mexican locomotives.

    You may ask us to exempt from the requirements and prohibitions of 
this part locomotives that are operated primarily outside of the United 
States and that enter the United States temporarily from Canada or 
Mexico. We will approve this exemption only where we determine that the 
locomotive's operation within the United States will not be extensive 
and will be incidental to its primary operation. For example, we would 
generally exempt locomotives that will not operate more than 25 miles 
from the border and will operate in the United States less than 5 
percent of their operating time. For existing operations, you must 
request this exemption before January 1, 2011. In your request, identify 
the locomotives for which you are requesting an exemption, and describe 
their projected use in the United States. We may grant the exemption 
broadly or limit the exemption to specific locomotives and/or specific 
geographic areas. However, we will typically approve exemptions for 
specific rail facilities rather than specific locomotives. In unusual 
circumstances, such as cases in which new rail facilities are created, 
we may approve requests submitted after January 1, 2011.



Sec. 1033.652  Special provisions for exported locomotives.

    (a) Uncertified locomotives. Locomotives covered by an export 
exemption under 40 CFR 1068.230 may be introduced into U.S. commerce 
prior to being exported, but may not be used in any revenue generating 
service in the United States. Locomotives covered by this paragraph (a) 
may not include any EPA emission control information label. Such 
locomotives may include emission control information labels for the 
country to which they are being exported.
    (b) Locomotives covered by export-only certificates. Locomotives may 
be certified for export under 40 CFR 1068.230. Such locomotives may be 
introduced into U.S. commerce prior to being exported, but may not be 
used in any revenue generating service in the United States.
    (c) Locomotives included in a certified engine family. Except as 
specified in paragraph (d) of this section, locomotives included in a 
certified engine family may be exported without restriction. Note that 
Sec. 1033.705 requires that exported locomotives be excluded from 
emission credit calculations in certain circumstances.

[[Page 70]]

    (d) Locomotives certified to FELs above the standards. The 
provisions of this paragraph (d) apply for locomotive configurations 
included in engine families certified to one or more FELs above any 
otherwise applicable standard. Individual locomotives that will be 
exported may be excluded from an engine family if they are unlabeled. 
For locomotives that were labeled during production, you may remove the 
emission control information labels prior to export. All unlabeled 
locomotives that will be exported are subject to the provisions of 
paragraph (a) of this section. Locomotives that are of a configuration 
included in an engine family certified to one of more FELs above any 
otherwise applicable standard that include an EPA emission control 
information label when exported are considered to be part of the engine 
family and must be included in credit calculations under Sec. 1033.705. 
Note that this requirement does not apply for locomotives that do not 
have an EPA emission control information label, even if they have other 
labels (such as an export-only label).

[75 FR 22986, Apr. 30, 2010]



Sec. 1033.655  Special provisions for certain Tier 0/Tier 1 locomotives.

    (a) The provisions of this section apply only for the following 
locomotives (and locomotives in the same engine families as these 
locomotives):
    (1) Locomotives listed in Table 1 of this section originally 
manufactured 1986-1994 by General Electric Company that have never been 
equipped with separate loop aftercooling. The section also applies for 
the equivalent passenger locomotives.

                       Table 1 to Sec.  1033.655
------------------------------------------------------------------------
 
------------------------------------------------------------------------
8-40C.....................................  P32ACDM
8-40B.....................................  P42DC
8-32B.....................................  8-40BPH
8-40CW....................................  P40DC
8-40BW....................................  8-32BWH
8-40CM....................................  C39-8
8-41CW....................................  B39-8E
8-44CW                                      ............................
------------------------------------------------------------------------

    (2) SD70MAC and SD70IAC locomotives originally manufactured 1996-
2000 by EMD.
    (b) Any certifying remanufacturer may request relief for the 
locomotives covered by this section.
    (c) You may ask us to allow these locomotives to exceed otherwise 
applicable line-haul cycle NOX standard for high ambient 
temperatures and/or altitude because of limitations of the cooling 
system. However, the NOX emissions may exceed the otherwise 
applicable standard only to the extent necessary. Relief is limited to 
the following conditions:
    (1) For General Electric locomotives, you may ask for relief for 
ambient temperatures above 23 [deg]C and/or barometric pressure below 
97.5 kPa (28.8 in. Hg). NOX emissions may not exceed 9.5 g/
bhp-hr over the line-haul cycle for any temperatures up to 105 [deg]F 
and any altitude up to 7000 feet above sea level.
    (2) For EMD locomotives, you may ask for relief for ambient 
temperatures above 30 [deg]C and/or barometric pressure below 97.5 kPa 
(28.8 in. Hg). NOX emissions may not exceed 8.0 g/bhp-hr over 
the line-haul cycle for any temperatures up to 105 [deg]F and any 
altitude up to 7000 feet above sea level.
    (d) All other standards and requirements in this part apply as 
specified.
    (e) To request this relief, submit to the Designated Compliance 
Officer along with your application for certification an engineering 
analysis showing how your emission controls operate for the following 
conditions:
    (1) Temperatures 23-40 [deg]C at any altitude up to 7000 feet above 
sea level.
    (2) Altitudes 1000-7000 feet above sea level for any temperature 
from 15-40 [deg]C.



       Subpart H_Averaging, Banking, and Trading for Certification



Sec. 1033.701  General provisions.

    (a) You may average, bank, and trade (ABT) emission credits for 
purposes of certification as described in this subpart to show 
compliance with the standards of this part. Participation in this 
program is voluntary.
    (b) Section 1033.740 restricts the use of emission credits to 
certain averaging sets.
    (c) The definitions of Subpart J of this part apply to this subpart. 
The following definitions also apply:

[[Page 71]]

    (1) Actual emission credits means emission credits you have 
generated that we have verified by reviewing your final report.
    (2) Applicable emission standard means an emission standard that is 
specified in subpart B of this part. Note that for other subparts, 
``applicable emission standard'' is defined to also include FELs.
    (3) Averaging set means a set of locomotives in which emission 
credits may be exchanged only with other locomotives in the same 
averaging set.
    (4) Broker means any entity that facilitates a trade of emission 
credits between a buyer and seller.
    (5) Buyer means the entity that receives emission credits as a 
result of a trade.
    (6) Reserved emission credits means emission credits you have 
generated that we have not yet verified by reviewing your final report.
    (7) Seller means the entity that provides emission credits during a 
trade.
    (8) Trade means to exchange emission credits, either as a buyer or 
seller.
    (9) Transfer means to convey control of credits generated for an 
individual locomotive to the purchaser, owner, or operator of the 
locomotive at the time of manufacture or remanufacture; or to convey 
control of previously generated credits from the purchaser, owner, or 
operator of an individual locomotive to the manufacturer/remanufacturer 
at the time of manufacture/remanufacture.
    (d) You may not use emission credits generated under this subpart to 
offset any emissions that exceed an FEL or standard. This applies for 
all testing, including certification testing, in-use testing, selective 
enforcement audits, and other production-line testing. However, if 
emissions from a locomotive exceed an FEL or standard (for example, 
during a selective enforcement audit), you may use emission credits to 
recertify the engine family with a higher FEL that applies only to 
future production.
    (e) Engine families that use emission credits for one or more 
pollutants may not generate positive emission credits for another 
pollutant.
    (f) Emission credits may be used in the model year they are 
generated or in future model years. Emission credits may not be used for 
past model years.
    (g) You may increase or decrease an FEL during the model year by 
amending your application for certification under Sec. 1033.225. The 
new FEL may apply only to locomotives you have not already introduced 
into commerce. Each locomotive's emission control information label must 
include the applicable FELs. You must conduct production line testing to 
verify that the emission levels are achieved.
    (h) Credits may be generated by any certifying manufacturer/
remanufacturer and may be held by any of the following entities:
    (1) Locomotive or engine manufacturers.
    (2) Locomotive or engine remanufacturers.
    (3) Locomotive owners.
    (4) Locomotive operators.
    (5) Other entities after notification to EPA.
    (i) All locomotives that are certified to an FEL that is different 
from the emission standard that would otherwise apply to the locomotives 
are required to comply with that FEL for the remainder of their service 
lives, except as allowed by Sec. 1033.750.
    (1) Manufacturers must notify the purchaser of any locomotive that 
is certified to an FEL that is different from the emission standard that 
would otherwise apply that the locomotive is required to comply with 
that FEL for the remainder of its service life.
    (2) Remanufacturers must notify the owner of any locomotive or 
locomotive engine that is certified to an FEL that is different from the 
emission standard that would otherwise apply that the locomotive (or the 
locomotive in which the engine is used) is required to comply with that 
FEL for the remainder of its service life.
    (j) The FEL to which the locomotive is certified must be included on 
the locomotive label required in Sec. 1033.135. This label must include 
the notification specified in paragraph (i) of this section.

[[Page 72]]



Sec. 1033.705  Calculating emission credits.

    The provisions of this section apply separately for calculating 
emission credits for NOX or PM.
    (a) Calculate positive emission credits for an engine family that 
has an FEL below the otherwise applicable emission standard. Calculate 
negative emission credits for an engine family that has an FEL above the 
otherwise applicable emission standard. Do not round until the end of 
year report.
    (b) For each participating engine family, calculate positive or 
negative emission credits relative to the otherwise applicable emission 
standard. For the end of year report, round the sum of emission credits 
to the nearest one hundredth of a megagram (0.01 Mg). Round your end of 
year emission credit balance to the nearest megagram (Mg). Use 
consistent units throughout the calculation. When useful life is 
expressed in terms of megawatt-hrs, calculate credits for each engine 
family from the following equation:

Emission credits = (Std-FEL) x (1.341) x (UL) x (Production) x 
    (Fp) x (10-3 kW-Mg/MW-g).

Where:

Std = the applicable NOX or PM emission standard in g/bhp-hr 
(except that Std = previous FEL in g/bhp-hr for locomotives that were 
certified under this part to an FEL other than the standard during the 
previous useful life).
FEL = the family emission limit for the engine family in g/bhp-hr.
UL = the sales-weighted average useful life in megawatt-hours (or the 
subset of the engine family for which credits are being calculated), as 
specified in the application for certification.
Production = the number of locomotives participating in the averaging, 
banking, and trading program within the given engine family during the 
calendar year (or the number of locomotives in the subset of the engine 
family for which credits are being calculated). Quarterly production 
projections are used for initial certification. Actual applicable 
production/sales volumes are used for end-of-year compliance 
determination.
Fp = the proration factor as determined in paragraph (d) of 
this section.

    (c) When useful life is expressed in terms of miles, calculate the 
useful life in terms of megawatt-hours (UL) by dividing the useful life 
in miles by 100,000, and multiplying by the sales-weighted average rated 
power of the engine family. For example, if your useful life is 800,000 
miles for a family with an average rated power of 3,500 hp, then your 
equivalent MW-hr useful life would be 28,000 MW-hrs. Credits are 
calculated using this UL value in the equations of paragraph (b) of this 
section.
    (d) The proration factor is an estimate of the fraction of a 
locomotive's service life that remains as a function of age. The 
proration factor is 1.00 for freshly manufactured locomotives.
    (1) The locomotive's age is the length of time in years from the 
date of original manufacture to the date at which the remanufacture (for 
which credits are being calculated) is completed, rounded to the next 
higher year.
    (2) The proration factors for line-haul locomotives ages 1 through 
20 are specified in Table 1 to this section. For line-haul locomotives 
more than 20 years old, use the proration factor for 20 year old 
locomotives. The proration factors for switch locomotives ages 1 through 
40 are specified in Table 2 to this section. For switch locomotives more 
than 40 years old, use the proration factor for 40 year old locomotives.
    (3) For repower engines, the proration factor is based on the age of 
the locomotive chassis, not the age of the engine, except for 
remanufactured locomotives that qualify as refurbished. The minimum 
proration factor for remanufactured locomotives that meet the definition 
of refurbished but not freshly manufactured is 0.60. (Note: The 
proration factor is 1.00 for all locomotives that meet the definition of 
freshly manufactured.)

 Table 1 to Sec.  1033.705--Proration Factors for Line-Haul Locomotives
------------------------------------------------------------------------
                                                             Proration
                 Locomotive age (years)                     factor (Fp)
------------------------------------------------------------------------
1.......................................................            0.96
2.......................................................            0.92
3.......................................................            0.88
4.......................................................            0.84
5.......................................................            0.81
6.......................................................            0.77
7.......................................................            0.73
8.......................................................            0.69
9.......................................................            0.65
10......................................................            0.61
11......................................................            0.57
12......................................................            0.54

[[Page 73]]

 
13......................................................            0.50
14......................................................            0.47
15......................................................            0.43
16......................................................            0.40
17......................................................            0.36
18......................................................            0.33
19......................................................            0.30
20......................................................            0.27
------------------------------------------------------------------------


  Table 2 to Sec.  1033.705--Proration Factors for Switch Locomotives
------------------------------------------------------------------------
                                                             Proration
                 Locomotive age (years)                     factor (Fp)
------------------------------------------------------------------------
1.......................................................            0.98
2.......................................................            0.96
3.......................................................            0.94
4.......................................................            0.92
5.......................................................            0.90
6.......................................................            0.88
7.......................................................            0.86
8.......................................................            0.84
9.......................................................            0.82
10......................................................            0.80
11......................................................            0.78
12......................................................            0.76
13......................................................            0.74
14......................................................            0.72
15......................................................            0.70
16......................................................            0.68
17......................................................            0.66
18......................................................            0.64
19......................................................            0.62
20......................................................            0.60
21......................................................            0.58
22......................................................            0.56
23......................................................            0.54
24......................................................            0.52
25......................................................            0.50
26......................................................            0.48
27......................................................            0.46
28......................................................            0.44
29......................................................            0.42
30......................................................            0.40
31......................................................            0.38
32......................................................            0.36
33......................................................            0.34
34......................................................            0.32
35......................................................            0.30
36......................................................            0.28
37......................................................            0.26
38......................................................            0.24
39......................................................            0.22
40......................................................            0.20
------------------------------------------------------------------------

    (e) In your application for certification, base your showing of 
compliance on projected production volumes for locomotives that will be 
placed into service in the United States. As described in Sec. 
1033.730, compliance with the requirements of this subpart is determined 
at the end of the model year based on actual production volumes for 
locomotives that will be placed into service in the United States. Do 
not include any of the following locomotives to calculate emission 
credits:
    (1) Locomotives permanently exempted under subpart G of this part or 
under 40 CFR part 1068.
    (2) Exported locomotives. You may ask to include locomotives sold to 
Mexican or Canadian railroads if they will likely operate within the 
United States and you include all such locomotives (both credit using 
and credit generating locomotives).
    (3) Locomotives not subject to the requirements of this part, such 
as those excluded under Sec. 1033.5.
    (4) Any other locomotives, where we indicate elsewhere in this part 
1033 that they are not to be included in the calculations of this 
subpart.

[73 FR 37197, June 30, 2008, as amended at 75 FR 22987, Apr. 30, 2010]



Sec. 1033.710  Averaging emission credits.

    (a) Averaging is the exchange of emission credits among your engine 
families. You may average emission credits only as allowed by Sec. 
1033.740.
    (b) You may certify one or more engine families to an FEL above the 
applicable emission standard, subject to the FEL caps and other 
provisions in subpart B of this part, if you show in your application 
for certification that your projected balance of all emission-credit 
transactions in that model year is greater than or equal to zero.
    (c) If you certify an engine family to an FEL that exceeds the 
otherwise applicable emission standard, you must obtain enough emission 
credits to offset the engine family's deficit by the due date for the 
final report required in Sec. 1033.730. The emission credits used to 
address the deficit may come from your other engine families that 
generate emission credits in the same model year, from emission credits 
you have banked, or from emission credits you obtain through trading or 
by transfer.



Sec. 1033.715  Banking emission credits.

    (a) Banking is the retention of emission credits by the 
manufacturer/remanufacturer generating the emission credits (or owner/
operator, in the case of transferred credits) for use in future model 
years for averaging, trading, or

[[Page 74]]

transferring. You may use banked emission credits only as allowed by 
Sec. 1033.740.
    (b) You may designate any emission credits you plan to bank in the 
reports you submit under Sec. 1033.730 as reserved credits. During the 
model year and before the due date for the final report, you may 
designate your reserved emission credits for averaging, trading, or 
transferring.
    (c) Reserved credits become actual emission credits when you submit 
your final report. However, we may revoke these emission credits if we 
are unable to verify them after reviewing your reports or auditing your 
records.

[75 FR 22987, Apr. 30, 2010]



Sec. 1033.720  Trading emission credits.

    (a) Trading is the exchange of emission credits between certificate 
holders. You may use traded emission credits for averaging, banking, or 
further trading transactions. Traded emission credits may be used only 
as allowed by Sec. 1033.740.
    (b) You may trade actual emission credits as described in this 
subpart. You may also trade reserved emission credits, but we may revoke 
these emission credits based on our review of your records or reports or 
those of the company with which you traded emission credits.
    (c) If a negative emission credit balance results from a 
transaction, both the buyer and seller are liable, except in cases we 
deem to involve fraud. See Sec. 1033.255(e) for cases involving fraud. 
We may void the certificates of all engine families participating in a 
trade that results in a manufacturer/remanufacturer having a negative 
balance of emission credits. See Sec. 1033.745.



Sec. 1033.722  Transferring emission credits.

    (a) Credit transfer is the conveying of control over credits, 
either:
    (1) From a certifying manufacturer/remanufacturer to an owner/
operator.
    (2) From an owner/operator to a certifying manufacturer/
remanufacturer.
    (b) Transferred credits can be:
    (1) Used by a certifying manufacturer/remanufacturer in averaging.
    (2) Transferred again within the model year.
    (3) Reserved for later banking. Transferred credits may not be 
traded unless they have been previously banked.
    (c) Owners/operators participating in credit transfers must submit 
the reports specified in Sec. 1033.730.



Sec. 1033.725  Requirements for your application for certification.

    (a) You must declare in your application for certification your 
intent to use the provisions of this subpart for each engine family that 
will be certified using the ABT program. You must also declare the FELs 
you select for the engine family for each pollutant for which you are 
using the ABT program. Your FELs must comply with the specifications of 
subpart B of this part, including the FEL caps. FELs must be expressed 
to the same number of decimal places as the applicable emission 
standards.
    (b) Include the following in your application for certification:
    (1) A statement that, to the best of your belief, you will not have 
a negative balance of emission credits for any averaging set when all 
emission credits are calculated at the end of the year.
    (2) Detailed calculations of projected emission credits (positive or 
negative) based on projected production volumes. We may require you to 
include similar calculations from your other engine families to 
demonstrate that you will be able to avoid a negative credit balance for 
the model year. If you project negative emission credits for a family, 
state the source of positive emission credits you expect to use to 
offset the negative emission credits.

[73 FR 37197, June 30, 2008, as amended at 75 FR 22987, Apr. 30, 2010]



Sec. 1033.730  ABT reports.

    (a) If any of your engine families are certified using the ABT 
provisions of this subpart, you must send an end-of-year report within 
90 days after the end of the model year and a final report within 270 
days after the end of the model year. We may waive the requirement to 
send the end-of year report, as long as you send the final report on 
time.
    (b) Your end-of-year and final reports must include the following 
information

[[Page 75]]

for each engine family participating in the ABT program:
    (1) Engine family designation.
    (2) The emission standards that would otherwise apply to the engine 
family.
    (3) The FEL for each pollutant. If you change the FEL after the 
start of production, identify the date that you started using the new 
FEL and/or give the engine identification number for the first engine 
covered by the new FEL. In this case, identify each applicable FEL and 
calculate the positive or negative emission credits as specified in 
Sec. 1033.225.
    (4) The projected and actual production volumes for the model year 
that will be placed into service in the United States as described in 
Sec. 1033.705. If you changed an FEL during the model year, identify 
the actual production volume associated with each FEL.
    (5) Rated power for each locomotive configuration, and the average 
locomotive power weighted by U.S.-directed production volumes for the 
engine family.
    (6) Useful life.
    (7) Calculated positive or negative emission credits for the whole 
engine family. Identify any emission credits that you traded or 
transferred, as described in paragraph (d)(1) or (e) of this section.
    (c) Your end-of-year and final reports must include the following 
additional information:
    (1) Show that your net balance of emission credits from all your 
engine families in each averaging set in the applicable model year is 
not negative.
    (2) State whether you will retain any emission credits for banking.
    (3) State that the report's contents are accurate.
    (d) If you trade emission credits, you must send us a report within 
90 days after the transaction, as follows:
    (1) As the seller, you must include the following information in 
your report:
    (i) The corporate names of the buyer and any brokers.
    (ii) A copy of any contracts related to the trade.
    (iii) The engine families that generated emission credits for the 
trade, including the number of emission credits from each family.
    (2) As the buyer, you must include the following information in your 
report:
    (i) The corporate names of the seller and any brokers.
    (ii) A copy of any contracts related to the trade.
    (iii) How you intend to use the emission credits, including the 
number of emission credits you intend to apply to each engine family (if 
known).
    (e) If you transfer emission credits, you must send us a report 
within 90 days after the first transfer to an owner/operator, as 
follows:
    (1) Include the following information:
    (i) The corporate names of the owner/operator receiving the credits.
    (ii) A copy of any contracts related to the trade.
    (iii) The serial numbers and engine families for the locomotive that 
generated the transferred emission credits and the number of emission 
credits from each family.
    (2) The requirements of this paragraph (e) apply separately for each 
owner/operator.
    (3) We may require you to submit additional 90-day reports under 
this paragraph (e).
    (f) Send your reports electronically to the Designated Compliance 
Officer using an approved information format. If you want to use a 
different format, send us a written request with justification for a 
waiver.
    (g) Correct errors in your end-of-year report or final report as 
follows:
    (1) You may correct any errors in your end-of-year report when you 
prepare the final report, as long as you send us the final report by the 
time it is due.
    (2) If you or we determine within 270 days after the end of the 
model year that errors mistakenly decreased your balance of emission 
credits, you may correct the errors and recalculate the balance of 
emission credits. You may not make these corrections for errors that are 
determined more than 270 days after the end of the model year. If you 
report a negative balance of emission credits, we may disallow 
corrections under this paragraph (g)(2).

[[Page 76]]

    (3) If you or we determine anytime that errors mistakenly increased 
your balance of emission credits, you must correct the errors and 
recalculate the balance of emission credits.
    (h) We may modify these requirements for owners/operators required 
to submit reports because of their involvement in credit transferring.

[73 FR 37197, June 30, 2008, as amended at 75 FR 22987, Apr. 30, 2010]



Sec. 1033.735  Required records.

    (a) You must organize and maintain your records as described in this 
section. We may review your records at any time.
    (b) Keep the records required by this section for at least eight 
years after the due date for the end-of-year report. You may not use 
emission credits for any engines if you do not keep all the records 
required under this section. You must therefore keep these records to 
continue to bank valid credits. Store these records in any format and on 
any media, as long as you can promptly send us organized, written 
records in English if we ask for them. You must keep these records 
readily available. We may review them at any time.
    (c) Keep a copy of the reports we require in Sec. 1033.730.
    (d) Keep records of the engine identification number for each 
locomotive you produce that generates or uses emission credits under the 
ABT program. If you change the FEL after the start of production, 
identify the date you started using each FEL and the range of engine 
identification numbers associated with each FEL. You must also be able 
to identify the purchaser and destination for each engine you produce.
    (e) We may require you to keep additional records or to send us 
relevant information not required by this section in accordance with the 
Clean Air Act.

[73 FR 37197, June 30, 2008, as amended at 75 FR 22987, Apr. 30, 2010]



Sec. 1033.740  Credit restrictions.

    Use of emission credits generated under this part 1033 or 40 CFR 
part 92 is restricted depending on the standards against which they were 
generated.
    (a) Credits from 40 CFR part 92. NOX and PM credits 
generated under 40 CFR part 92 may be used under this part in the same 
manner as NOX and PM credits generated under this part.
    (b) General cycle restriction. Locomotives subject to both switch 
cycle standards and line-haul cycle standards (such as Tier 2 
locomotives) may generate both switch and line-haul credits. Except as 
specified in paragraph (c) of this section, such credits may only be 
used to show compliance with standards for the same cycle for which they 
were generated. For example, a Tier 2 locomotive that is certified to a 
switch cycle NOX FEL below the applicable switch cycle 
standard and a line-haul cycle NOX FEL below the applicable 
line-haul cycle standard may generate switch cycle NOX 
credits for use in complying with switch cycle NOX standards 
and a line-haul cycle NOX credits for use in complying with 
line-haul cycle NOX standards.
    (c) Single cycle locomotives. As specified in Sec. 1033.101, Tier 0 
switch locomotives, Tier 3 and later switch locomotives, and Tier 4 and 
later line-haul locomotives are not subject to both switch cycle and 
line-haul cycle standards.
    (1) When using credits generated by locomotives covered by paragraph 
(b) of this section for single cycle locomotives covered by this 
paragraph (c), you must use both switch and line-haul credits as 
described in this paragraph (c)(1).
    (i) For locomotives subject only to switch cycle standards, 
calculate the negative switch credits for the credit using locomotive as 
specified in Sec. 1033.705. Such locomotives also generate an equal 
number of negative line-haul cycle credits (in Mg).
    (ii) For locomotives subject only to line-haul cycle standards, 
calculate the negative line-haul credits for the credit using locomotive 
as specified in Sec. 1033.705. Such locomotives also generate an equal 
number of negative switch cycle credits (in Mg).
    (2) Credits generated by Tier 0, Tier 3, or Tier 4 switch 
locomotives may be used to show compliance with any switch cycle or 
line-haul cycle standards.

[[Page 77]]

    (3) Credits generated by any line-haul locomotives may not be used 
by Tier 3 or later switch locomotives.
    (d) Tier 4 credit use. The number of Tier 4 locomotives that can be 
certified using credits in any year may not exceed 50 percent of the 
total number of Tier 4 locomotives you produce in that year for U.S. 
sales.
    (e) Other restrictions. Other sections of this part may specify 
additional restrictions for using emission credits under certain special 
provisions.



Sec. 1033.745  Compliance with the provisions of this subpart.

    The provisions of this section apply to certificate holders.
    (a) For each engine family participating in the ABT program, the 
certificate of conformity is conditional upon full compliance with the 
provisions of this subpart during and after the model year. You are 
responsible to establish to our satisfaction that you fully comply with 
applicable requirements. We may void the certificate of conformity for 
an engine family if you fail to comply with any provisions of this 
subpart.
    (b) You may certify your engine family to an FEL above an applicable 
emission standard based on a projection that you will have enough 
emission credits to offset the deficit for the engine family. However, 
we may void the certificate of conformity if you cannot show in your 
final report that you have enough actual emission credits to offset a 
deficit for any pollutant in an engine family.
    (c) We may void the certificate of conformity for an engine family 
if you fail to keep records, send reports, or give us information we 
request.
    (d) You may ask for a hearing if we void your certificate under this 
section (see Sec. 1033.920).



Sec. 1033.750  Changing a locomotive's FEL at remanufacture.

    Locomotives are generally required to be certified to the previously 
applicable emission standard or FEL when remanufactured. This section 
describes provisions that allow a remanufactured locomotive to be 
certified to a different FEL (higher or lower).
    (a) A remanufacturer may choose to certify a remanufacturing system 
to change the FEL of a locomotive from a previously applicable FEL or 
standard. Any locomotives remanufactured using that system are required 
to comply with the revised FEL for the remainder of their service lives, 
unless it is changed again under this section during a later 
remanufacture. Remanufacturers changing an FEL must notify the owner of 
the locomotive that it is required to comply with that FEL for the 
remainder of its service life.
    (b) Calculate the credits needed or generated as specified in Sec. 
1033.705, except as specified in this paragraph. If the locomotive was 
previously certified to an FEL for the pollutant, use the previously 
applicable FEL as the standard.



             Subpart I_Requirements for Owners and Operators



Sec. 1033.801  Applicability.

    The requirements of this subpart are applicable to railroads and all 
other owners and operators of locomotives subject to the provisions of 
this part, except as otherwise specified. The prohibitions related to 
maintenance in Sec. 1033.815 also applies to anyone performing 
maintenance on a locomotive subject to the provisions of this part.



Sec. 1033.805  Remanufacturing requirements.

    (a) See the definition of ``remanufacture'' in Sec. 1033.901 to 
determine if you are remanufacturing your locomotive or engine. (Note: 
Replacing power assemblies one at a time may qualify as remanufacturing, 
depending on the interval between replacement.)
    (b) See the definition of ``new'' in Sec. 1033.901 to determine if 
remanufacturing your locomotive makes it subject to the requirements of 
this part. If the locomotive is considered to be new, it is subject to 
the certification requirements of this part, unless it is exempt under 
subpart G of this part. The standards to which your locomotive is 
subject will depend on factors such as the following:
    (1) Its date of original manufacture.
    (2) The FEL to which it was previously certified, which is listed on 
the ``Locomotive Emission Control Information'' label.

[[Page 78]]

    (3) Its power rating (whether it is above or below 2300 hp).
    (4) The calendar year in which it is being remanufactured.
    (c) You may comply with the certification requirements of this part 
for your remanufactured locomotive by either obtaining your own 
certificate of conformity as specified in subpart C of this part or by 
having a certifying remanufacturer include your locomotive under its 
certificate of conformity. In either case, your remanufactured 
locomotive must be covered by a certificate before it is reintroduced 
into service.
    (d) If you do not obtain your own certificate of conformity from 
EPA, contact a certifying remanufacturer to have your locomotive 
included under its certificate of conformity. Confirm with the 
certificate holder that your locomotive's model, date of original 
manufacture, previous FEL, and power rating allow it to be covered by 
the certificate. You must do all of the following:
    (1) Comply with the certificate holder's emission-related 
installation instructions, which should include the following:
    (i) A description of how to assemble and adjust the locomotive so 
that it will operate according to design specifications in the 
certificate. See paragraph (e) of this section for requirements related 
to the parts you must use.
    (ii) Instructions to remove the Engine Emission Control Information 
label and replace it with the certificate holder's new label. Note: In 
most cases, you must not remove the Locomotive Emission Control 
Information label.
    (2) Provide to the certificate holder the information it identifies 
as necessary to comply with the requirements of this part. For example, 
the certificate holder may require you to provide the information 
specified by Sec. 1033.735.
    (e) For parts unrelated to emissions and emission-related parts not 
addressed by the certificate holder in the emission-related installation 
instructions, you may use parts from any source. For emission-related 
parts listed by the certificate holder in the emission-related 
installation instructions, you must either use the specified parts or 
parts certified under Sec. 1033.645 for remanufacturing. If you believe 
that the certificate holder has included as emission-related parts, 
parts that are actually unrelated to emissions, you may ask us to 
exclude such parts from the emission-related installation instructions. 
Note: This paragraph (e) does not apply with respect to parts for 
maintenance other than remanufacturing; see Sec. 1033.815 for 
provisions related to general maintenance.
    (f) Failure to comply with this section is a violation of 40 CFR 
1068.101(a)(1).



Sec. 1033.810  In-use testing program.

    (a) Applicability. This section applies to all Class I freight 
railroads. It does not apply to other owner/operators.
    (b) Testing requirements. Annually test a sample of locomotives in 
your fleet. For purposes of this section, your fleet includes both the 
locomotives that you own and the locomotives that you are leasing. Use 
the test procedures in subpart F of this part, unless we approve 
different procedures.
    (1) Except for the cases described in paragraph (b)(2) of this 
section, test at least 0.075 percent of the average number of 
locomotives in your fleet during the previous calendar year (i.e., 
determine the number to be tested by multiplying the number of 
locomotives in the fleet by 0.00075 and rounding up to the next whole 
number).
    (2) We may allow you to test a smaller number of locomotives if we 
determine that the number of tests otherwise required by this section is 
not necessary.
    (c) Test locomotive selection. Unless we specify a different option, 
select test locomotives as specified in paragraph (c)(1) of this section 
(Option 1). In no case may you exclude locomotives because of visible 
smoke, a history of durability problems, or other evidence of 
malmaintenance. You may test more locomotives than this section 
requires.
    (1) Option 1. To the extent possible, select locomotives from each 
manufacturer and remanufacturer, and from each tier level (e.g., Tier 0, 
Tier 1 and Tier 2) in proportion to their numbers in the your fleet. 
Exclude locomotives

[[Page 79]]

tested during the previous year. If possible, select locomotives that 
have been operated for at least 100 percent of their useful lives. Where 
there are multiple locomotives meeting the requirements of this 
paragraph (c)(1), randomly select the locomotives to be tested from 
among those locomotives. If the number of certified locomotives that 
have been operated for at least 100 percent of their useful lives is not 
large enough to fulfill the testing requirement, test locomotives still 
within their useful lives as follows:
    (i) Test locomotives in your fleet that are nearest to the end of 
their useful lives. You may identify such locomotives as a range of 
values representing the fraction of the useful life already used up for 
the locomotives.
    (ii) For example, you may determine that 20 percent of your fleet 
has been operated for at least 75 percent of their useful lives. In such 
a case, select locomotives for testing that have been operated for at 
least 75 percent of their useful lives.
    (2) Option 2. If you hold a certificate for some of your 
locomotives, you may ask us to allow you to select up to two locomotives 
as specified in subpart E of this part, and count those locomotives 
toward both your testing obligations of that subpart and this section.
    (3) Option 3. You may ask us to allow you to test locomotives that 
use parts covered under Sec. 1033.645. If we do, it does not change the 
number of locomotives that you must test.
    (4) Option 4. We may require that you test specific locomotives, 
including locomotives that do not meet the criteria specified in any of 
the options in this section. If we do, we will specify which locomotives 
to test by January 1 of the calendar year for which testing is required.
    (d) Reporting requirements. Report all testing done in compliance 
with the provisions of this section to us within 45 calendar days after 
the end of each calendar year. At a minimum, include the following:
    (1) Your full corporate name and address.
    (2) For each locomotive tested, all the following:
    (i) Corporate name of the manufacturer and last remanufacturer(s) of 
the locomotive (including both certificate holder and installer, where 
different), and the corporate name of the manufacturer or last 
remanufacturer(s) of the engine if different than that of the 
manufacturer/remanufacturer(s) of the locomotive.
    (ii) Year (and month if known) of original manufacture of the 
locomotive and the engine, and the manufacturer's model designation of 
the locomotive and manufacturer's model designation of the engine, and 
the locomotive identification number.
    (iii) Year (and month if known) that the engine last underwent 
remanufacture, the engine remanufacturer's designation that reflects (or 
most closely reflects) the engine after the last remanufacture, and the 
engine family identification.
    (iv) The number of MW-hrs and miles (where available) the locomotive 
has been operated since its last remanufacture.
    (v) The emission test results for all measured pollutants.
    (e) You do not have to submit a report for any year in which you 
performed no emission testing under this section.
    (f) You may ask us to allow you to submit equivalent emission data 
collected for other purposes instead of some or all of the test data 
required by this section. If we allow it in advance, you may report 
emission data collected using other testing or sampling procedures 
instead of some or all of the data specified by this section.
    (g) Submit all reports to the Designated Compliance Officer.
    (h) Failure to comply fully with this section is a violation of 40 
CFR 1068.101(a)(2).

[73 FR 37197, June 30, 2008, as amended at 73 FR 59191, Oct. 8, 2008]



Sec. 1033.815  Maintenance, operation, and repair.

    All persons who own, operate, or maintain locomotives are subject to 
this section, except where we specify that a requirement applies to the 
owner.
    (a) Unless we allow otherwise, all owners of locomotives subject to 
the provisions of this part must ensure that all emission-related 
maintenance

[[Page 80]]

is performed on the locomotives, as specified in the maintenance 
instructions provided by the certifying manufacturer/remanufacturer in 
compliance with Sec. 1033.125 (or maintenance that is equivalent to the 
maintenance specified by the certifying manufacturer/remanufacturer in 
terms of maintaining emissions performance).
    (b) Perform unscheduled maintenance in a timely manner. This 
includes malfunctions identified through the locomotive's emission 
control diagnostics system and malfunctions discovered in components of 
the diagnostics system itself. For most repairs, this paragraph (b) 
requires that the maintenance be performed no later than the 
locomotive's next periodic (92-day) inspection. See paragraph (e) of 
this section, for reductant replenishment requirements in a locomotive 
equipped with an SCR system.
    (c) Use good engineering judgment when performing maintenance of 
locomotives subject to the provisions of this part. You must perform all 
maintenance and repair such that you have a reasonable technical basis 
for believing the locomotive will continue (after the maintenance or 
repair) to meet the applicable emission standards and FELs to which it 
was certified.
    (d) The owner of the locomotive must keep records of all maintenance 
and repairs that could reasonably affect the emission performance of any 
locomotive subject to the provisions of this part. Keep these records 
for eight years.
    (e) For locomotives equipped with emission controls requiring the 
use of specific fuels, lubricants, or other fluids, proper maintenance 
includes complying with the manufacturer/remanufacturer's specifications 
for such fluids when operating the locomotives. This requirement applies 
without regard to whether misfueling permanently disables the emission 
controls. The following additional provisions apply for locomotives 
equipped with SCR systems requiring the use of urea or other reductants:
    (1) You must plan appropriately to ensure that reductant will be 
available to the locomotive during operation.
    (2) If the SCR diagnostic indicates (or you otherwise determine) 
that either reductant supply or reductant quality in the locomotive is 
inadequate, you must replace the reductant as soon as practical.
    (3) If you operate a locomotive without the appropriate urea or 
other reductant, you must report such operation to us within 30 days. 
Note that such operation violates the requirement of this paragraph (e); 
however, we may consider mitigating factors (such as how long the 
locomotive was operated without the appropriate urea or other reductant) 
in determining whether to assess penalties for such violations.
    (f) Failure to fully comply with this section is a violation of 40 
CFR 1068.101(b).



Sec. 1033.820  In-use locomotives.

    (a) We may require you to supply in-use locomotives to us for 
testing. We will specify a reasonable time and place at which you must 
supply the locomotives and a reasonable period during which we will keep 
them for testing. We will make reasonable allowances for you to schedule 
the supply of locomotives to minimize disruption of your operations. The 
number of locomotives that you must supply is limited as follows:
    (1) We will not require a Class I railroad to supply more than five 
locomotives per railroad per calendar year.
    (2) We will not require a non-Class I railroad (or other entity 
subject to the provisions of this subpart) to supply more than two 
locomotives per railroad per calendar year. We will request locomotives 
under this paragraph (a)(2) only for purposes that cannot be 
accomplished using locomotives supplied under paragraph (a)(1) of this 
section.
    (b) You must make reasonable efforts to supply manufacturers/
remanufacturers with the test locomotives needed to fulfill the in-use 
testing requirements in subpart E of this part.
    (c) Failure to fully comply with this section is a violation of 40 
CFR 1068.101(a)(2).



Sec. 1033.825  Refueling requirements.

    (a) If your locomotive operates using a volatile fuel, your 
refueling equipment must be designed and used to minimize the escape of 
fuel vapors.

[[Page 81]]

This means you may not use refueling equipment in a way that renders any 
refueling emission controls inoperative or reduces their effectiveness.
    (b) If your locomotive operates using a gaseous fuel, the hoses used 
to refuel it may not be designed to be bled or vented to the atmosphere 
under normal operating conditions.
    (c) Failing to fully comply with the requirements of this section is 
a violation of 40 CFR 1068.101(b).



          Subpart J_Definitions and Other Reference Information



Sec. 1033.901  Definitions.

    The following definitions apply to this part. The definitions apply 
to all subparts unless we note otherwise. All undefined terms have the 
meaning the Clean Air Act gives to them. The definitions follow:
    Adjustable parameter means any device, system, or element of design 
that someone can adjust (including those which are difficult to access) 
and that, if adjusted, may affect emissions or locomotive performance 
during emission testing or normal in-use operation. This includes, but 
is not limited to, parameters related to injection timing and fueling 
rate. You may ask us to exclude a parameter if you show us that it will 
not be adjusted in a way that affects emissions during in-use operation.
    Aftertreatment means relating to a catalytic converter, particulate 
filter, or any other system, component, or technology mounted downstream 
of the exhaust valve (or exhaust port) whose design function is to 
reduce emissions in the locomotive exhaust before it is exhausted to the 
environment. Exhaust-gas recirculation (EGR) is not aftertreatment.
    Alcohol fuel means a fuel consisting primarily (more than 50 percent 
by weight) of one or more alcohols: e.g., methyl alcohol, ethyl alcohol.
    Alcohol-fueled locomotive means a locomotive with an engine that is 
designed to run using an alcohol fuel. For purposes of this definition, 
alcohol fuels do not include fuels with a nominal alcohol content below 
25 percent by volume.
    Alternator/generator efficiency means the ratio of the electrical 
power output from the alternator/generator to the mechanical power input 
to the alternator/generator at the operating point. Note that the 
alternator/generator efficiency may be different at different operating 
points. For example, the Institute of Electrical and Electronic 
Engineers Standard 115 (``Test Procedures for Synchronous Machines'') is 
an appropriate test procedure for determining alternator/generator 
efficiency. Other methods may also be used consistent with good 
engineering judgment.
    Applicable emission standard or applicable standard means a standard 
to which a locomotive is subject; or, where a locomotive has been or is 
being certified to another standard or FEL, the FEL or other standard to 
which the locomotive has been or is being certified is the applicable 
standard. This definition does not apply to Subpart H of this part.
    Auxiliary emission control device means any element of design that 
senses temperature, locomotive 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.
    Auxiliary engine means a nonroad engine that provides hotel power or 
power during idle, but does not provide power to propel the locomotive.
    Averaging means the exchange of emission credits among engine 
families within a given manufacturer's, or remanufacturer's product 
line.
    Banking means the retention of emission credits by a credit holder 
for use in future calendar year averaging or trading as permitted by the 
regulations in this part.
    Brake power means the sum of the alternator/generator input power 
and the mechanical accessory power, excluding any power required to 
circulate engine coolant, circulate engine lubricant, supply fuel to the 
engine, or operate aftertreatment devices.
    Calibration means the set of specifications, including tolerances, 
specific to a particular design, version, or application of a component, 
or components, or

[[Page 82]]

assembly capable of functionally describing its operation over its 
working range.
    Carryover means relating to certification based on emission data 
generated from an earlier model year as described in Sec. 1033.235(d).
    Certification means the process of obtaining a certificate of 
conformity for an engine family that complies with the emission 
standards and requirements in this part, or relating to that process.
    Certified emission level means the highest deteriorated emission 
level in an engine family for a given pollutant from a given test cycle.
    Class I freight railroad means a Class I railroad that primarily 
transports freight rather than passengers.
    Class I railroad means a railroad that has been classified as a 
Class I railroad by the Surface Transportation Board.
    Class II railroad means a railroad that has been classified as a 
Class II railroad by the Surface Transportation Board.
    Class III railroad means a railroad that has been classified as a 
Class III railroad by the Surface Transportation Board.
    Clean Air Act means the Clean Air Act, as amended, 42 U.S.C. 7401-
7671q.
    Configuration means a unique combination of locomotive hardware and 
calibration within an engine family. Locomotives within a single 
configuration differ only with respect to normal production variability 
(or factors unrelated to engine performance or emissions).
    Crankcase emissions means airborne substances emitted to the 
atmosphere from any part of the locomotive crankcase's ventilation or 
lubrication systems. The crankcase is the housing for the crankshaft and 
other related internal parts.
    Days means calendar days, unless otherwise specified. For example, 
where we specify working days, we mean calendar days excluding weekends 
and U.S. national holidays.
    Design certify or certify by design means to certify a locomotive 
based on inherent design characteristics rather than your test data, 
such as allowed under Sec. 1033.625. All other requirements of this 
part apply for such locomotives.
    Designated Compliance Officer means the Manager, Heavy Duty and 
Nonroad Engine Group (6403-J), U.S. Environmental Protection Agency, 
1200 Pennsylvania Ave., NW., Washington, DC 20460.
    Deteriorated emission level means the emission level that results 
from applying the appropriate deterioration factor to the official 
emission result of the emission-data locomotive.
    Deterioration factor means the relationship between emissions at the 
end of useful life and emissions at the low-hour test point, expressed 
in one of the following ways:
    (1) For multiplicative deterioration factors, the ratio of emissions 
at the end of useful life to emissions at the low-hour test point.
    (2) For additive deterioration factors, the difference between 
emissions at the end of useful life and emissions at the low-hour test 
point.
    Discrete-mode means relating to the discrete-mode type of steady-
state test described in Sec. 1033.515.
    Emission control system means any device, system, or element of 
design that controls or reduces the regulated emissions from a 
locomotive.
    Emission credits represent the amount of emission reduction or 
exceedance, by a locomotive engine family, below or above the emission 
standard, respectively. Emission reductions below the standard are 
considered as ``positive credits,'' while emission exceedances above the 
standard are considered as ``negative credits.'' In addition, 
``projected credits'' refer to emission credits based on the projected 
applicable production/sales volume of the engine family. ``Reserved 
credits'' are emission credits generated within a calendar year waiting 
to be reported to EPA at the end of the calendar year. ``Actual 
credits'' refer to emission credits based on actual applicable 
production/sales volume as contained in the end-of-year reports 
submitted to EPA.
    Emission-data locomotive means a locomotive or engine that is tested 
for certification. This includes locomotives tested to establish 
deterioration factors.
    Emission-related maintenance means maintenance that substantially 
affects

[[Page 83]]

emissions or is likely to substantially affect emission deterioration.
    Engine family has the meaning given in Sec. 1033.230.
    Engine used in a locomotive means an engine incorporated into a 
locomotive or intended for incorporation into a locomotive (whether or 
not it is used for propelling the locomotive).
    Engineering analysis means a summary of scientific and/or 
engineering principles and facts that support a conclusion made by a 
manufacturer/remanufacturer, with respect to compliance with the 
provisions of this part.
    EPA Enforcement Officer means any officer or employee of the 
Environmental Protection Agency so designated in writing by the 
Administrator or his/her designee.
    Exempted means relating to a locomotive that is not required to meet 
otherwise applicable standards. Exempted locomotives must conform to 
regulatory conditions specified for an exemption in this part 1033 or in 
40 CFR part 1068. Exempted locomotives are deemed to be ``subject to'' 
the standards of this part, even though they are not required to comply 
with the otherwise applicable requirements. Locomotives exempted with 
respect to a certain tier of standards may be required to comply with an 
earlier tier of standards as a condition of the exemption; for example, 
locomotives exempted with respect to Tier 3 standards may be required to 
comply with Tier 2 standards.
    Excluded means relating to a locomotive that either has been 
determined not to be a locomotive (as defined in this section) or 
otherwise excluded under section Sec. 1033.5. Excluded locomotives are 
not subject to the standards of this part.
    Exhaust emissions means substances (i.e., gases and particles) 
emitted to the atmosphere from any opening downstream from the exhaust 
port or exhaust valve of a locomotive engine.
    Exhaust-gas recirculation means a technology that reduces emissions 
by routing exhaust gases that had been exhausted from the combustion 
chamber(s) back into the locomotive to be mixed with incoming air before 
or during combustion. The use of valve timing to increase the amount of 
residual exhaust gas in the combustion chamber(s) that is mixed with 
incoming air before or during combustion is not considered exhaust-gas 
recirculation for the purposes of this part.
    Freshly manufactured locomotive means a new locomotive that contains 
fewer than 25 percent previously used parts (weighted by the dollar 
value of the parts) as described in Sec. 1033.640.
    Freshly manufactured engine means a new engine that has not been 
remanufactured. An engine becomes freshly manufactured when it is 
originally manufactured.
    Family emission limit (FEL) means an emission level declared by the 
manufacturer/remanufacturer to serve in place of an otherwise applicable 
emission standard under the ABT program in subpart H of this part. The 
family emission limit must be expressed to the same number of decimal 
places as the emission standard it replaces. The family emission limit 
serves as the emission standard for the engine family with respect to 
all required testing.
    Fuel system means all components involved in transporting, metering, 
and mixing the fuel from the fuel tank to the combustion chamber(s), 
including the fuel tank, fuel tank cap, fuel pump, fuel filters, fuel 
lines, carburetor or fuel-injection components, and all fuel-system 
vents.
    Fuel type means a general category of fuels such as diesel fuel or 
natural gas. There can be multiple grades within a single fuel type, 
such as high-sulfur or low-sulfur diesel fuel.
    Gaseous fuel means a fuel which is a gas at standard temperature and 
pressure. This includes both natural gas and liquefied petroleum gas.
    Good engineering judgment means judgments made consistent with 
generally accepted scientific and engineering principles and all 
available relevant information. See 40 CFR 1068.5 for the administrative 
process we use to evaluate good engineering judgment.
    Green Engine Factor means a factor that is applied to emission 
measurements from a locomotive or locomotive engine that has had little 
or no service accumulation. The Green Engine Factor adjusts emission 
measurements to

[[Page 84]]

be equivalent to emission measurements from a locomotive or locomotive 
engine that has had approximately 300 hours of use.
    High-altitude means relating to an altitude greater than 4000 feet 
(1220 meters) and less than 7000 feet (2135 meters), or equivalent 
observed barometric test conditions (approximately 79 to 88 kPa).
    High-sulfur diesel fuel means one of the following:
    (1) For in-use fuels, high-sulfur diesel fuel means a diesel fuel 
with a maximum sulfur concentration greater than 500 parts per million.
    (2) For testing, high-sulfur diesel fuel has the meaning given in 40 
CFR part 1065.
    Hotel power means the power provided by an engine on a locomotive to 
operate equipment on passenger cars of a train; e.g., heating and air 
conditioning, lights, etc.
    Hydrocarbon (HC) means the hydrocarbon group (THC, NMHC, or THCE) on 
which the emission standards are based for each fuel type as described 
in Sec. 1033.101.
    Identification number means a unique specification (for example, a 
model number/serial number combination) that allows someone to 
distinguish a particular locomotive from other similar locomotives.
    Idle speed means the speed, expressed as the number of revolutions 
of the crankshaft per unit of time (e.g., rpm), at which the engine is 
set to operate when not under load for purposes of propelling the 
locomotive. There are typically one or two idle speeds on a locomotive 
as follows:
    (1) Normal idle speed means the idle speed for the idle throttle-
notch position for locomotives that have one throttle-notch position, or 
the highest idle speed for locomotives that have two idle throttle-notch 
positions.
    (2) Low idle speed means the lowest idle speed for locomotives that 
have two idle throttle-notch positions.
    Inspect and qualify means to determine that a previously used 
component or system meets all applicable criteria listed for the 
component or system in a certificate of conformity for remanufacturing 
(such as to determine that the component or system is functionally 
equivalent to one that has not been used previously).
    Installer means an individual or entity that assembles 
remanufactured locomotives or locomotive engines.
    Line-haul locomotive means a locomotive that does not meet the 
definition of switch locomotive. Note that this includes both freight 
and passenger locomotives.
    Liquefied petroleum gas means the commercial product marketed as 
propane or liquefied petroleum gas.
    Locomotive means a self-propelled piece of on-track equipment 
designed for moving or propelling cars that are designed to carry 
freight, passengers or other equipment, but which itself is not designed 
or intended to carry freight, passengers (other than those operating the 
locomotive) or other equipment. The following other equipment are not 
locomotives (see 40 CFR parts 86, 89, and 1039 for this diesel-powered 
equipment):
    (1) Equipment designed for operation both on highways and rails is 
not a locomotive.
    (2) Specialized railroad equipment for maintenance, construction, 
post-accident recovery of equipment, and repairs; and other similar 
equipment, are not locomotives.
    (3) Vehicles propelled by engines with total rated power of less 
than 750 kW (1006 hp) are not locomotives, unless the owner (which may 
be a manufacturer) chooses to have the equipment certified to meet the 
requirements of this part (under Sec. 1033.615). Where equipment is 
certified as a locomotive pursuant to this paragraph (3), it is subject 
to the requirements of this part for the remainder of its service life. 
For locomotives propelled by two or more engines, the total rated power 
is the sum of the rated power of each engine.
    Locomotive engine means an engine that propels a locomotive.
    Low-hour means relating to a locomotive with stabilized emissions 
and represents the undeteriorated emission level. This would generally 
involve less than 300 hours of operation.
    Low mileage locomotive means a locomotive during the interval 
between the time that normal assembly operations and adjustments are 
completed and the

[[Page 85]]

time that either 10,000 miles of locomotive operation or 300 additional 
operating hours have been accumulated (including emission testing if 
performed). Note that we may deem locomotives with additional operation 
to be low mileage locomotives, consistent with good engineering 
judgment.
    Low-sulfur diesel fuel means one of the following:
    (1) For in-use fuels, low-sulfur diesel fuel means a diesel fuel 
market as low-sulfur diesel fuel having a maximum sulfur concentration 
of 500 parts per million.
    (2) For testing, low-sulfur diesel fuel has the meaning given in 40 
CFR part 1065.
    Malfunction means a condition in which the operation of a component 
in a locomotive or locomotive engine occurs in a manner other than that 
specified by the certifying manufacturer/remanufacturer (e.g., as 
specified in the application for certification); or the operation of the 
locomotive or locomotive engine in that condition.
    Manufacture means the physical and engineering process of designing, 
constructing, and assembling a locomotive or locomotive engine.
    Manufacturer has the meaning given in section 216(1) of the Clean 
Air Act with respect to freshly manufactured locomotives or engines. In 
general, this term includes any person who manufactures a locomotive or 
engine for sale in the United States or otherwise introduces a new 
locomotive or engine into commerce in the United States. This includes 
importers who import locomotives or engines for resale.
    Manufacturer/remanufacturer means the manufacturer of a freshly 
manufactured locomotive or engine or the remanufacturer of a 
remanufactured locomotive or engine, as applicable.
    Model year means a calendar year in which a locomotive is 
manufactured or remanufactured.
    New, when relating to a locomotive or locomotive engine, has the 
meaning given in paragraph (1) of this definition, except as specified 
in paragraph (2) of this definition:
    (1) A locomotive or engine is new if its equitable or legal title 
has never been transferred to an ultimate purchaser. Where the equitable 
or legal title to a locomotive or engine is not transferred prior to its 
being placed into service, the locomotive or engine ceases to be new 
when it is placed into service. A locomotive or engine also becomes new 
if it is remanufactured or refurbished (as defined in this section). A 
remanufactured locomotive or engine ceases to be new when placed back 
into service. With respect to imported locomotives or locomotive 
engines, the term ``new locomotive'' or ``new locomotive engine'' also 
means a locomotive or locomotive engine that is not covered by a 
certificate of conformity under this part or 40 CFR part 92 at the time 
of importation, and that was manufactured or remanufactured after the 
effective date of the emission standards in 40 CFR part 92 which would 
have been applicable to such locomotive or engine had it been 
manufactured or remanufactured for importation into the United States. 
Note that replacing an engine in one locomotive with an unremanufactured 
used engine from a different locomotive does not make a locomotive new.
    (2) The provisions of paragraph (1) of this definition do not apply 
for the following cases:
    (i) Locomotives and engines that were originally manufactured before 
January 1, 1973 are not considered to become new when remanufactured 
unless they have been upgraded (as defined in this section). The 
provisions of paragraph (1) of this definition apply for locomotives 
that have been upgraded.
    (ii) Locomotives that are owned and operated by a small railroad and 
that have never been certified (i.e., manufactured or remanufactured 
into a certified configuration) are not considered to become new when 
remanufactured. The provisions of paragraph (1) of this definition apply 
for locomotives that have previously been remanufactured into a 
certified configuration.
    (iii) Locomotives originally certified under Sec. 1033.150(e) do 
not become new when remanufactured, except as specified in Sec. 
1033.615.
    (iv) Locomotives that operate only on non-standard gauge rails do 
not become new when remanufactured if no certified remanufacturing 
system is available for them.

[[Page 86]]

    Nonconforming means relating to a locomotive that is not covered by 
a certificate of conformity prior to importation or being offered for 
importation (or for which such coverage has not been adequately 
demonstrated to EPA); or a locomotive which was originally covered by a 
certificate of conformity, but which is not in a certified 
configuration, or otherwise does not comply with the conditions of that 
certificate of conformity. (Note: Domestic locomotives and locomotive 
engines not covered by a certificate of conformity prior to their 
introduction into U.S. commerce are considered to be noncomplying 
locomotives and locomotive engines.)
    Non-locomotive-specific engine means an engine that is sold for and 
used in non-locomotive applications much more than for locomotive 
applications.
    Nonmethane hydrocarbon has the meaning given in 40 CFR 1065.1001. 
This generally means the difference between the emitted mass of total 
hydrocarbons and the emitted mass of methane.
    Nonroad means relating to nonroad engines as defined in 40 CFR 
1068.30.
    Official emission result means the measured emission rate for an 
emission-data locomotive on a given duty cycle before the application of 
any deterioration factor, but after the application of regeneration 
adjustment factors, Green Engine Factors, and/or humidity correction 
factors.
    Opacity means the fraction of a beam of light, expressed in percent, 
which fails to penetrate a plume of smoke, as measured by the procedure 
specified in Sec. 1033.525.
    Original manufacture means the event of freshly manufacturing a 
locomotive or locomotive engine. The date of original manufacture is the 
date of final assembly, except as provided in Sec. 1033.640. Where a 
locomotive is manufactured under Sec. 1033.620(b), the date of original 
manufacture is the date on which the final assembly of locomotive was 
originally scheduled.
    Original remanufacture means the first remanufacturing of a 
locomotive at which the locomotive is subject to the emission standards 
of this part.
    Owner/operator means the owner and/or operator of a locomotive.
    Owners manual means a written or electronic collection of 
instructions provided to ultimate purchasers to describe the basic 
operation of the locomotive.
    Oxides of nitrogen has the meaning given in 40 CFR part 1065.
    Particulate trap means a filtering device that is designed to 
physically trap all particulate matter above a certain size.
    Passenger locomotive means a locomotive designed and constructed for 
the primary purpose of propelling passenger trains, and providing power 
to the passenger cars of the train for such functions as heating, 
lighting and air conditioning.
    Petroleum fuel means gasoline or diesel fuel or another liquid fuel 
primarily derived from crude oil.
    Placed into service means put into initial use for its intended 
purpose after becoming new.
    Power assembly means the components of an engine in which combustion 
of fuel occurs, and consists of the cylinder, piston and piston rings, 
valves and ports for admission of charge air and discharge of exhaust 
gases, fuel injection components and controls, cylinder head and 
associated components.
    Primary fuel means the type of fuel (e.g., diesel fuel) that is 
consumed in the greatest quantity (mass basis) when the locomotive is 
operated in use.
    Produce means to manufacture or remanufacture. Where a certificate 
holder does not actually assemble the locomotives or locomotive engines 
that it manufactures or remanufactures, produce means to allow other 
entities to assemble locomotives under the certificate holder's 
certificate.
    Railroad means a commercial entity that operates locomotives to 
transport passengers or freight.
    Ramped-modal means relating to the ramped-modal type of testing in 
subpart F of this part.
    Rated power has the meaning given in Sec. 1033.140.
    Refurbish has the meaning given in Sec. 1033.640.
    Remanufacture means one of the following:
    (1)(i) To replace, or inspect and qualify, each and every power 
assembly of a locomotive or locomotive engine,

[[Page 87]]

whether during a single maintenance event or cumulatively within a five-
year period.
    (ii) To upgrade a locomotive or locomotive engine.
    (iii) To convert a locomotive or locomotive engine to enable it to 
operate using a fuel other than it was originally manufactured to use.
    (iv) To install a remanufactured engine or a freshly manufactured 
engine into a previously used locomotive.
    (v) To repair a locomotive engine that does not contain power 
assemblies to a condition that is equivalent to or better than its 
original condition with respect to reliability and fuel consumption.
    (2) Remanufacture also means the act of remanufacturing.
    Remanufacture system or remanufacturing system means all components 
(or specifications for components) and instructions necessary to 
remanufacture a locomotive or locomotive engine in accordance with 
applicable requirements of this part or 40 CFR part 92.
    Remanufactured locomotive means either a locomotive powered by a 
remanufactured locomotive engine, a repowered locomotive, or a 
refurbished locomotive.
    Remanufactured locomotive engine means a locomotive engine that has 
been remanufactured.
    Remanufacturer has the meaning given to ``manufacturer'' in section 
216(1) of the Clean Air Act with respect to remanufactured locomotives. 
(See Sec. Sec. 1033.1 and 1033.601 for applicability of this term.) 
This term includes:
    (1) Any person that is engaged in the manufacture or assembly of 
remanufactured locomotives or locomotive engines, such as persons who:
    (i) Design or produce the emission-related parts used in 
remanufacturing.
    (ii) Install parts in an existing locomotive or locomotive engine to 
remanufacture it.
    (iii) Own or operate the locomotive or locomotive engine and provide 
specifications as to how an engine is to be remanufactured (i.e., 
specifying who will perform the work, when the work is to be performed, 
what parts are to be used, or how to calibrate the adjustable parameters 
of the engine).
    (2) Any person who imports remanufactured locomotives or 
remanufactured locomotive engines.
    Repower means replacement of the engine in a previously used 
locomotive with a freshly manufactured locomotive engine. See Sec. 
1033.640.
    Repowered locomotive means a locomotive that has been repowered with 
a freshly manufactured engine.
    Revoke has the meaning given in 40 CFR 1068.30. In general this 
means to terminate the certificate or an exemption for an engine family.
    Round means to round numbers as specified in 40 CFR 1065.1001.
    Service life means the total life of a locomotive. Service life 
begins when the locomotive is originally manufactured and continues 
until the locomotive is permanently removed from service.
    Small manufacturer/remanufacturer means a manufacturer/
remanufacturer with 1,000 or fewer employees. For purposes of this part, 
the number of employees includes all employees of the manufacturer/
remanufacturer's parent company, if applicable.
    Small railroad means a railroad meeting the criterion of paragraph 
(1) of this definition, but not either of the criteria of paragraphs (2) 
and (3) of this definition.
    (1) To be considered a small railroad, a railroad must qualify as a 
small business under the Small Business Administration's regulations in 
13 CFR part 121.
    (2) Class I and Class II railroads (and their subsidiaries) are not 
small railroads.
    (3) Intercity passenger and commuter railroads are excluded from 
this definition of small railroad. Note that this paragraph (3) does not 
exclude tourist railroads.
    Specified adjustable range means the range of allowable settings for 
an adjustable component specified by a certificate of conformity.
    Specified by a certificate of conformity or specified in a 
certificate of conformity means stated or otherwise specified in a 
certificate of conformity or an approved application for certification.
    Sulfur-sensitive technology means an emission-control technology 
that would experience a significant drop in

[[Page 88]]

emission control performance or emission-system durability when a 
locomotive is operated on low-sulfur fuel with a sulfur concentration of 
300 to 500 ppm as compared to when it is operated on ultra low-sulfur 
fuel (i.e., fuel with a sulfur concentration less than 15 ppm). Exhaust-
gas recirculation is not a sulfur-sensitive technology.
    Suspend has the meaning given in 40 CFR 1068.30. In general this 
means to temporarily discontinue the certificate or an exemption for an 
engine family.
    Switch locomotive means a locomotive that is powered by an engine 
with a maximum rated power (or a combination of engines having a total 
rated power) of 2300 hp or less. Include auxiliary engines in your 
calculation of total power if the engines are permanently installed on 
the locomotive and can be operated while the main propulsion engine is 
operating. Do not count the power of auxiliary engines that operate only 
to reduce idling time of the propulsion engine.
    Test locomotive means a locomotive or engine in a test sample.
    Test sample means the collection of locomotives or engines selected 
from the population of an engine family for emission testing. This may 
include testing for certification, production-line testing, or in-use 
testing.
    Tier 0 or Tier 0+ means relating to the Tier 0 emission standards, 
as shown in Sec. 1033.101.
    Tier 1 or Tier 1+ means relating to the Tier 1 emission standards, 
as shown in Sec. 1033.101.
    Tier 2 or Tier 2+ means relating to the Tier 2 emission standards, 
as shown in Sec. 1033.101.
    Tier 3 means relating to the Tier 3 emission standards, as shown in 
Sec. 1033.101.
    Tier 4 means relating to the Tier 4 emission standards, as shown in 
Sec. 1033.101.
    Total hydrocarbon has the meaning given in 40 CFR 1065.1001. This 
generally means the combined mass of organic compounds measured by the 
specified procedure for measuring total hydrocarbon, expressed as a 
hydrocarbon with an atomic hydrogen-to-carbon ratio of 1.85:1.
    Total hydrocarbon equivalent has the meaning given in 40 CFR 
1065.1001. This generally means the sum of the carbon mass contributions 
of non-oxygenated hydrocarbons, alcohols and aldehydes, or other organic 
compounds that are measured separately as contained in a gas sample, 
expressed as exhaust hydrocarbon from petroleum-fueled locomotives. The 
atomic hydrogen-to-carbon mass ratio of the equivalent hydrocarbon is 
1.85:1.
    Ultimate purchaser means the first person who in good faith 
purchases a new locomotive for purposes other than resale.
    Ultra low-sulfur diesel fuel means one of the following:
    (1) For in-use fuels, ultra low-sulfur diesel fuel means a diesel 
fuel marketed as ultra low-sulfur diesel fuel having a maximum sulfur 
concentration of 15 parts per million.
    (2) For testing, ultra low-sulfur diesel fuel has the meaning given 
in 40 CFR part 1065.
    Upcoming model year means for an engine family the model year after 
the one currently in production.
    Upgrade means one of the following types of remanufacturing.
    (1) Repowering a locomotive that was originally manufactured prior 
to January 1, 1973.
    (2) Refurbishing a locomotive that was originally manufactured prior 
to January 1, 1973 in a manner that is not freshly manufacturing.
    (3) Modifying a locomotive that was originally manufactured prior to 
January 1, 1973 (or a locomotive that was originally manufactured on or 
after January 1, 1973, and that is not subject to the emission standards 
of this part), such that it is intended to comply with the Tier 0 
standards. See Sec. 1033.615.
    Useful life means the period during which the locomotive engine is 
designed to properly function in terms of reliability and fuel 
consumption, without being remanufactured, specified as work output or 
miles. It is the period during which a locomotive is required to comply 
with all applicable emission standards. See Sec. 1033.101(g).
    Void has the meaning given in 40 CFR 1068.30. In general this means 
to invalidate a certificate or an exemption both retroactively and 
prospectively.

[[Page 89]]

    Volatile fuel means a volatile liquid fuel or any fuel that is a gas 
at atmospheric pressure. Gasoline, natural gas, and LPG are volatile 
fuels.
    Volatile liquid fuel means any liquid fuel other than diesel or 
biodiesel that is a liquid at atmospheric pressure and has a Reid Vapor 
Pressure higher than 2.0 pounds per square inch.
    We (us, our) means the Administrator of the Environmental Protection 
Agency and any authorized representatives.

[73 FR 37197, June 30, 2008, as amended at 73 FR 59191, Oct. 8, 2008; 75 
FR 22987, Apr. 30, 2010]



Sec. 1033.905  Symbols, acronyms, and abbreviations.

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

ABT averaging, banking, and trading.
AECD auxiliary emission control device.
AESS automatic engine stop/start
AF adjustment factor (see Sec. 1033.530).
CFR Code of Federal Regulations.
CH4 methane.
CO carbon monoxide.
CO2 carbon dioxide.
EPA Environmental Protection Agency.
FEL Family Emission Limit.
g/bhp-hr grams per brake horsepower-hour.
HC hydrocarbon.
hp horsepower.
LPG liquefied petroleum gas.
LSD low sulfur diesel.
MW megawatt.
N2O nitrous oxide.
NIST National Institute of Standards and Technology.
NMHC nonmethane hydrocarbons.
NOX oxides of nitrogen.
PM particulate matter.
rpm revolutions per minute.
SAE Society of Automotive Engineers.
SCR selective catalytic reduction.
SEA Selective Enforcement Audit.
THC total hydrocarbon.
THCE total hydrocarbon equivalent.
UL useful life.
ULSD ultra low sulfur diesel.
U.S. United States.
U.S.C. United States Code.

[73 FR 37197, June 30, 2008, as amended at 74 FR 56508, Oct. 30, 2008; 
75 FR 22987, Apr. 30, 2010]



Sec. 1033.915  Confidential information.

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



Sec. 1033.920  How to request a hearing.

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



Sec. 1033.925  Reporting and recordkeeping requirements.

    Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the 
Office of Management and Budget approves the reporting and recordkeeping 
specified in the applicable regulations. Failing to properly report 
information and keep the records we specify violates 40 CFR 
1068.101(a)(2), which may involve civil or criminal penalties. The 
following items illustrate the kind of reporting and recordkeeping we 
require for engines regulated under this part:
    (a) We specify the following requirements related to engine 
certification in this part 1033:
    (1) In Sec. 1033.150 we state the requirements for interim 
provisions.
    (2) In subpart C of this part we identify a wide range of 
information required to certify engines.

[[Page 90]]

    (3) In Sec. 1033.325 we specify certain records related to 
production-line testing.
    (4) In subpart G of this part we identify several reporting and 
recordkeeping items for making demonstrations and getting approval 
related to various special compliance provisions.
    (5) In Sec. Sec. 1033.725, 1033.730, and 1033.735 we specify 
certain records related to averaging, banking, and trading.
    (6) In subpart I of this part we specify certain records related to 
meeting requirements for remanufactured engines.
    (b) We specify the following requirements related to testing in 40 
CFR part 1065:
    (1) In 40 CFR 1065.2 we give an overview of principles for reporting 
information.
    (2) In 40 CFR 1065.10 and 1065.12 we specify information needs for 
establishing various changes to published test procedures.
    (3) In 40 CFR 1065.25 we establish basic guidelines for storing test 
information.
    (4) In 40 CFR 1065.695 we identify the specific information and data 
items to record when measuring emissions.
    (c) We specify the following requirements related to the general 
compliance provisions in 40 CFR part 1068:
    (1) In 40 CFR 1068.5 we establish a process for evaluating good 
engineering judgment related to testing and certification.
    (2) In 40 CFR 1068.25 we describe general provisions related to 
sending and keeping information.
    (3) In 40 CFR 1068.27 we require manufacturers to make engines 
available for our testing or inspection if we make such a request.
    (4) In 40 CFR 1068.105 we require vessel manufacturers to keep 
certain records related to duplicate labels from engine manufacturers.
    (5) In 40 CFR 1068.120 we specify recordkeeping related to 
rebuilding engines.
    (6) In 40 CFR part 1068, subpart C, we identify several reporting 
and recordkeeping items for making demonstrations and getting approval 
related to various exemptions.
    (7) In 40 CFR part 1068, subpart D, we identify several reporting 
and recordkeeping items for making demonstrations and getting approval 
related to importing engines.
    (8) In 40 CFR 1068.450 and 1068.455 we specify certain records 
related to testing production-line engines in a selective enforcement 
audit.
    (9) In 40 CFR 1068.501 we specify certain records related to 
investigating and reporting emission-related defects.
    (10) In 40 CFR 1068.525 and 1068.530 we specify certain records 
related to recalling nonconforming engines.

[75 FR 22987, Apr. 30, 2010]



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

ENGINES--Table of Contents



                  Subpart A_Overview and Applicability

Sec.
1039.1 Does this part apply for my engines?
1039.2 Who is responsible for compliance?
1039.5 Which engines are excluded from this part's requirements?
1039.10 How is this part organized?
1039.15 Do any other regulation parts apply to me?
1039.20 What requirements from this part apply to excluded stationary 
          engines?
1039.30 Submission of information.

          Subpart B_Emission Standards and Related Requirements

1039.101 What exhaust emission standards must my engines meet after the 
          2014 model year?
1039.102 What exhaust emission standards and phase-in allowances apply 
          for my engines in model year 2014 and earlier?
1039.104 Are there interim provisions that apply only for a limited 
          time?
1039.105 What smoke standards must my engines meet?
1039.107 What evaporative emission standards and requirements apply?
1039.110 [Reserved]
1039.115 What other requirements apply?
1039.120 What emission-related warranty requirements apply to me?
1039.125 What maintenance instructions must I give to buyers?
1039.130 What installation instructions must I give to equipment 
          manufacturers?
1039.135 How must I label and identify the engines I produce?
1039.140 What is my engine's maximum engine power?

[[Page 91]]

                  Subpart C_Certifying Engine Families

1039.201 What are the general requirements for obtaining a certificate 
          of conformity?
1039.205 What must I include in my application?
1039.210 May I get preliminary approval before I complete my 
          application?
1039.220 How do I amend the maintenance instructions in my application?
1039.225 How do I amend my application for certification?
1039.230 How do I select engine families?
1039.235 What testing requirements apply for certification?
1039.240 How do I demonstrate that my engine family complies with 
          exhaust emission standards?
1039.245 How do I determine deterioration factors from exhaust 
          durability testing?
1039.250 What records must I keep and what reports must I send to EPA?
1039.255 What decisions may EPA make regarding my certificate of 
          conformity?

Subpart D [Reserved]

                        Subpart E_In-use Testing

1039.401 General provisions.

                        Subpart F_Test Procedures

1039.501 How do I run a valid emission test?
1039.505 How do I test engines using steady-state duty cycles, including 
          ramped-modal testing?
1039.510 Which duty cycles do I use for transient testing?
1039.515 What are the test procedures related to not-to-exceed 
          standards?
1039.520 What testing must I perform to establish deterioration factors?
1039.525 How do I adjust emission levels to account for infrequently 
          regenerating aftertreatment devices?

                 Subpart G_Special Compliance Provisions

1039.601 What compliance provisions apply to these engines?
1039.605 What provisions apply to engines certified under the motor-
          vehicle program?
1039.610 What provisions apply to vehicles certified under the motor-
          vehicle program?
1039.615 What special provisions apply to engines using noncommercial 
          fuels?
1039.620 What are the provisions for exempting engines used solely for 
          competition?
1039.625 What requirements apply under the program for equipment-
          manufacturer flexibility?
1039.626 What special provisions apply to equipment imported under the 
          equipment-manufacturer flexibility program?
1039.627 What are the incentives for equipment manufacturers to use 
          cleaner engines?
1039.630 What are the economic hardship provisions for equipment 
          manufacturers?
1039.635 What are the hardship provisions for engine manufacturers?
1039.640 What special provisions apply to branded engines?
1039.645 What special provisions apply to engines used for 
          transportation refrigeration units?
1039.650 [Reserved]
1039.655 What special provisions apply to engines sold in Guam, American 
          Samoa, or the Commonwealth of the Northern Mariana Islands?
1039.660 What special provisions apply to Independent Commercial 
          Importers?

       Subpart H_Averaging, Banking, and Trading for Certification

1039.701 General provisions.
1039.705 How do I generate and calculate emission credits?
1039.710 How do I average emission credits?
1039.715 How do I bank emission credits?
1039.720 How do I trade emission credits?
1039.725 What must I include in my application for certification?
1039.730 What ABT reports must I send to EPA?
1039.735 What records must I keep?
1039.740 What restrictions apply for using emission credits?
1039.745 What can happen if I do not comply with the provisions of this 
          subpart?

          Subpart I_Definitions and Other Reference Information

1039.801 What definitions apply to this part?
1039.805 What symbols, acronyms, and abbreviations does this part use?
1039.815 What provisions apply to confidential information?
1039.820 How do I request a hearing?
1039.825 What reporting and recordkeeping requirements apply under this 
          part?

Appendix I to Part 1039 [Reserved]
Appendix II to Part 1039--Steady-state Duty Cycles
Appendix III to Part 1039 [Reserved]
Appendix IV to Part 1039 [Reserved]
Appendix V to Part 1039 [Reserved]
Appendix VI to Part 1039--Nonroad Compression-ignition Composite 
          Transient Cycle

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

    Source: 69 FR 39213, June 29, 2004, unless otherwise noted.

[[Page 92]]



                  Subpart A_Overview and Applicability



Sec. 1039.1  Does this part apply for my engines?

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

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

    (2) If you use the provisions of Sec. 1039.104(a) to certify an 
engine to the emission standards of this part before the model years 
shown in Table 1 of this section, all the requirements of this part 
apply for those engines.
    (3) See 40 CFR part 89 for requirements that apply to engines not 
yet subject to the requirements of this part 1039.
    (4) This part 1039 applies for other compression-ignition engines as 
follows:
    (i) The provisions of paragraph (c) of this section and Sec. 
1039.801 apply for stationary engines beginning January 1, 2006.
    (ii) The provisions of Sec. 1039.620 and Sec. 1039.801 apply for 
engines used solely for competition beginning January 1, 2006.
    (c) The definition of nonroad engine in 40 CFR 1068.30 excludes 
certain engines used in stationary applications. These engines may be 
required by subpart IIII of 40 CFR part 60 to comply with some of the 
provisions of this part 1039; otherwise, these engines are only required 
to comply with the requirements in Sec. 1039.20. In addition, the 
prohibitions in 40 CFR 1068.101 restrict the use of stationary engines 
for nonstationary purposes unless they are certified under this part 
1039, or under the provisions of 40 CFR part 89 or 40 CFR part 94, to 
the same standards that would apply to nonroad engines for the same 
model year.
    (d) In certain cases, the regulations in this part 1039 apply to 
engines at or above 250 kW that would otherwise be covered by 40 CFR 
part 1048. See 40 CFR 1048.620 for provisions related to this allowance.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40462, July 13, 2005; 
71 FR 39184, July 11, 2006]



Sec. 1039.2  Who is responsible for compliance?

    The regulations in this part 1039 contain provisions that affect 
both engine manufacturers and others. However, the requirements of this 
part are generally addressed to the engine manufacturer. The term 
``you'' generally means the engine manufacturer, as defined in Sec. 
1039.801, especially for issues related to certification.

[75 FR 22988, Apr. 30, 2010]



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

    This part does not apply to the following nonroad engines:
    (a) Locomotive engines. (1) The following locomotive engines are not 
subject to the provisions of this part 1039:
    (i) Engines in locomotives certified under 40 CFR part 1033.
    (ii) Engines in locomotives that are exempt from the standards of 40 
CFR part 92 or 1033 pursuant to the provisions of 40 CFR part 1033 or 
1068 (except for the provisions of 40 CFR 1033.150(e)).
    (2) The following locomotive engines are subject to the provisions 
of this part 1039:
    (i) Engines in locomotives exempt from 40 CFR part 1033 pursuant to 
the provisions of 40 CFR 1033.150(e).
    (ii) Locomotive engines excluded from the definition of locomotive 
in 40 CFR 1033.901.
    (b) Marine engines. (1) The following marine engines are not subject 
to the provisions of this part 1039:
    (i) Engines subject to the standards of 40 CFR part 94.

[[Page 93]]

    (ii) Engines not subject to the standards of 40 CFR part 94 only 
because they were produced before the standards of 40 CFR part 94 
started to apply.
    (iii) Engines that are exempt from the standards of 40 CFR part 94 
pursuant to the provisions of 40 CFR part 94 (except for the provisions 
of 40 CFR 94.907 or 94.912). For example, an engine that is exempt under 
40 CFR 94.906 because it is a manufacturer-owned engine is not subject 
to the provisions of this part 1039.
    (iv) Engines with rated power below 37 kW.
    (v) Engines on foreign vessels.
    (2) Marine engines are subject to the provisions of this part 1039 
if they are exempt from 40 CFR part 94 based on the engine-dressing 
provisions of 40 CFR 94.907 or the common-family provisions of 40 CFR 
94.912.
    (c) Mining engines. Engines used in underground mining or in 
underground mining equipment and regulated by the Mining Safety and 
Health Administration in 30 CFR parts 7, 31, 32, 36, 56, 57, 70, and 75 
are not subject to the provisions of this part 1039.
    (d) Hobby engines. Engines installed in reduced-scale models of 
vehicles that are not capable of transporting a person are not subject 
to the provisions of this part 1039.
    (e) Engines used in recreational vehicles. Engines certified to meet 
the requirements of 40 CFR part 1051 or are otherwise subject to 40 CFR 
part 1051 (for example, engines used in snowmobiles and all-terrain 
vehicles) are not subject to the provisions of this part 1039.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40462, July 13, 2005; 
73 FR 59191, Oct. 8, 2008; 75 FR 22988, Apr. 30, 2010]



Sec. 1039.10  How is this part organized?

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

[69 FR 39213, June 29, 2004, as amended at 70 FR 40462, July 13, 2005; 
72 FR 53129, Sept. 18, 2007]



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

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

[[Page 94]]

    (7) Procedures for hearings.
    (c) Other parts of this chapter apply if referenced in this part.

[69 FR 39213, June 29, 2004, as amended at 75 FR 22988, Apr. 30, 2010]



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

    The provisions of this section apply for engines built on or after 
January 1, 2006.
    (a) You must add a permanent label or tag to each new engine you 
produce or import that is excluded under Sec. 1039.1(c) as a stationary 
engine and is not required by 40 CFR part 60, subpart IIII, to meet the 
requirements of this part 1039, or the requirements of parts 89 or 94, 
that are equivalent to the requirements applicable to nonroad or marine 
engines for the same model year. To meet labeling requirements, you must 
do the following things:
    (1) Attach the label or tag in one piece so no one can remove it 
without destroying or defacing it.
    (2) Secure it to a part of the engine needed for normal operation 
and not normally requiring replacement.
    (3) Make sure it is durable and readable for the engine's entire 
life.
    (4) Write it in English.
    (5) Follow the requirements in Sec. 1039.135(g) regarding duplicate 
labels if the engine label is obscured in the final installation.
    (b) Engine labels or tags required under this section must have the 
following information:
    (1) Include the heading ``EMISSION CONTROL INFORMATION.''
    (2) Include your full corporate name and trademark. You may instead 
include the fill corporate name and trademark of another company you 
choose to designate.
    (3) State the engine displacement (in liters) and maximum engine 
power (or in the case of fire pumps, NFPA nameplate engine power).
    (4) State: ``THIS ENGINE IS EXEMPTED FROM THE REQUIREMENTS OF 40 CFR 
PARTS 89 AND 1039 AS A ``STATIONARY ENGINE.'' INSTALLING OR USING THIS 
ENGINE IN ANY OTHER APPLICATION MAY BE A VIOLATION OF FEDERAL LAW 
SUBJECT TO CIVIL PENALTY.''
    (c) Stationary engines required by 40 CFR part 60, subpart IIII, to 
meet the requirements of this part 1039, or parts 89 or 94, must meet 
the labeling requirements of 40 CFR 60.4210.

[69 FR 39213, June 29, 2004, as amended at 71 FR 39185, July 11, 2006]

    Effective Date Note: At 76 FR 37977, June 28, 2011, Sec. 1039.20 
was amended by revising paragraph (a) introductory text and paragraph 
(c), effective August 29, 2011. For the convenience of the user, the 
revised text is set forth as follows:



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

                                * * * * *

    (a) You must add a permanent label or tag to each new engine you 
produce or import that is excluded under Sec. 1039.1(c) as a stationary 
engine and is not required by 40 CFR part 60, subpart IIII, to meet the 
requirements of this part 1039, or the requirements of 40 CFR parts 89, 
94 or 1042, that are equivalent to the requirements applicable to marine 
or land-based nonroad engines for the same model year. To meet labeling 
requirements, you must do the following things:

                                * * * * *

    (c) Stationary engines required by 40 CFR part 60, subpart IIII, to 
meet the requirements of this part 1039, or part 89, 94 or 1042, must 
meet the labeling requirements of 40 CFR 60.4210.



Sec. 1039.30  Submission of information.

    (a) This part includes various requirements to record data or other 
information. Refer to Sec. 1039.825 and 40 CFR 1068.25 regarding 
recordkeeping requirements. Unless we specify otherwise, store these 
records in any format and on any media and keep them readily available 
for one year after you send an associated application for certification, 
or one year after you generate the data if they do not support an 
application for certification. You must promptly send us organized, 
written records in English if we ask for them. We may review them at any 
time.
    (b) The regulations in Sec. 1039.255 and 40 CFR 1068.101 describe 
your obligation to report truthful and complete information and the 
consequences of failing to meet this obligation. This includes 
information not related to certification.

[[Page 95]]

    (c) Send all reports and requests for approval to the Designated 
Compliance Officer (see Sec. 1039.801).
    (d) Any written information we require you to send to or receive 
from another company is deemed to be a required record under this 
section. Such records are also deemed to be submissions to EPA. We may 
require you to send us these records whether or not you are a 
certificate holder.

[75 FR 22988, Apr. 30, 2010]



          Subpart B_Emission Standards and Related Requirements



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

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

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

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

[[Page 96]]

not-to-exceed standards for your engine family, as specified in 
paragraph (e) of this section.
    (1) Primary FEL caps. The FEL may not be higher than the limits in 
Table 2 of this section, except as allowed by paragraph (d)(2) of this 
section or by Sec. 1039.102:

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

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

         Table 3 of Sec.  1039.101--Alternate FEL Caps, g/kW-hr
------------------------------------------------------------------------
                                     Starting
       Maximum engine power         model year  PM FEL  cap  NOX FEL cap
                                       \1\
------------------------------------------------------------------------
19 <= kW < 56....................     \2\ 2016         0.30  ...........
56 <= kW < 130...................         2016     \3\ 0.30      \3\ 3.8
130 <= kW <= 560.................         2015         0.20          3.8
kW  560...............         2019         0.10      \4\ 3.5
------------------------------------------------------------------------
\1\ See Sec.  1039.104(g) for alternate FEL caps that apply in earlier
  model years.
\2\ For manufacturers certifying engines under Option 1 of
  Table 3 of Sec.  1039.102, these alternate FEL caps apply starting
  with the 2017 model year.
\3\ For engines below 75 kW, the FEL caps are 0.40 g/kW-hr for PM
  emissions and 4.4 g/kW-hr for NOX emissions.
\4\ For engines above 560 kW, the provision for alternate NOX FEL caps
  is limited to generator-set engines. For example, if you produce 1,000
  generator-set engines above 560 kW in a given model year, up to 50 of
  them may be certified to the alternate NOX FEL caps.

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

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

Where:

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

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

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


[[Page 97]]

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

T = -0.00254 x A + 100

Where:

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

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

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

    (2) You may request in your application for certification that we 
approve a shorter useful life for an engine family. We may approve a 
shorter useful life, in hours of engine operation but not in years, if 
we determine that these engines will rarely operate longer than the 
shorter useful life. If engines identical to those in the engine family 
have already been produced and are in use, your demonstration must 
include documentation from such in-use engines. In

[[Page 98]]

other cases, your demonstration must include an engineering analysis of 
information equivalent to such in-use data, such as data from research 
engines or similar engine models that are already in production. Your 
demonstration must also include any overhaul interval that you 
recommend, any mechanical warranty that you offer for the engine or its 
components, and any relevant customer design specifications. Your 
demonstration may include any other relevant information. The useful 
life value may not be shorter than any of the following:
    (i) 1,000 hours of operation.
    (ii) Your recommended overhaul interval.
    (iii) Your mechanical warranty for the engine.
    (h) Applicability for testing. The emission standards in this 
subpart apply to all testing, including certification, selective 
enforcement audits, and in-use testing. For selective enforcement 
audits, we will require you to perform duty-cycle testing as specified 
in Sec. Sec. 1039.505 and 1039.510. The NTE standards of this section 
apply for those tests. We will not direct you to do additional testing 
under a selective enforcement audit to show that your engines meet the 
NTE standards.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40462, July 13, 2005]



Sec. 1039.102  What exhaust emission standards and phase-in allowances apply 

for my engines in model year 2014 and earlier?

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

[[Page 99]]



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


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


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


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


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


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


[[Page 100]]


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

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

[[Page 101]]

meet the NOX phase-in standards or the NOX+NMHC 
phase-out standards under paragraphs (b) and (c) of this section, 
subject to the additional ABT provisions in Sec. 1039.740.
    (2) Instead of meeting the phase-in requirements of paragraph (c)(1) 
of this section, you may certify engine families representing at least 
25 percent of your U.S.-directed production volume for each model year 
from 2012 through 2014 to the applicable phase-in standards in Tables 4 
and 5 of this section, except as allowed by paragraph (c)(3) or (e) of 
this section. Any engines not certified to the phase-in standards must 
be certified to the corresponding phase-out standards. Engines certified 
under this paragraph (d)(2) may generate NOX emission credits 
only for averaging within the same power category during the same model 
year. For engines certified under this paragraph (d)(2), the 2014 model 
year may not extend beyond December 30, 2014.
    (e) Alternate NOX standards. For engines in 56-560 kW power 
categories during the phase-in of Tier 4 standards, you may certify 
engine families to the alternate NOX or NOX + NMHC 
standards in this paragraph (e) instead of the phase-in and phase-out 
NOX and NOX + NMHC standards described in Tables 4 
through 6 of this section. Engines certified to an alternate 
NOX standard under this section must be certified to an NMHC 
standard of 0.19 g/kW-hr. Do not include engine families certified under 
this paragraph (e) in determining whether you comply with the percentage 
phase-in requirements of paragraphs (c) and (d)(2) of this section. 
Except for the provisions for alternate FEL caps in Sec. 1039.104(g), 
the NOX and NOX + NMHC standards and FEL caps 
under this paragraph (e) are as follows:
    (1) For engines in the 56-130 kW power category, apply the following 
alternate NOX standards and FEL caps:
    (i) If you use the provisions of paragraph (d)(1) of this section, 
your alternate NOX standard for any engine family in the 56-
130 kW power category is 2.3 g/kW-hr for model years 2012 and 2013. 
Engines certified to this standard may not exceed a NOX FEL 
cap of 3.0 g/kW-hr.
    (ii) If you use the provisions of paragraph (d)(2) of this section, 
your alternate NOX standard for any engine family in the 56-
130 kW power category is 3.4 g/kW-hr for model years 2012 through 2014. 
Engines below 75 kW certified to this standard may not exceed a 
NOX FEL cap of 4.4 g/kW-hr; engines at or above 75 kW 
certified to this standard may not exceed a NOX FEL cap of 
3.8 g/kW-hr.
    (iii) If you do not use the provisions of paragraph (d) of this 
section, you may apply the alternate NOX standard and the 
appropriate FEL cap from either paragraph (e)(1)(i) or (ii) of this 
section.
    (2) For engines in the 130-560 kW power category, the alternate 
NOX standard is 2.0 g/kW-hr for model years 2011 through 
2013. Engines certified to this standard may not exceed a NOX 
FEL cap of 2.7 g/kW-hr.
    (3) You use NOX + NMHC emission credits to certify an 
engine family to the alternate NOX + NMHC standards in this 
paragraph (e)(3) instead of the otherwise applicable alternate 
NOX and NMHC standards. Calculate the alternate 
NOX + NMHC standard by adding 0.1 g/kW-hr to the numerical 
value of the applicable alternate NOX standard of paragraph 
(e)(1) or (2) of this section. Engines certified to the NOX + 
NMHC standards of this paragraph (e)(3) may not generate emission 
credits. The FEL caps for engine families certified under this paragraph 
(e)(3) are the previously applicable NOX + NMHC standards of 
40 CFR 89.112 (generally the Tier 3 standards).
    (f) Split families. For generating or using credits for engines in 
56-560 kW power categories during the phase-in of Tier 4 standards, you 
may split an engine family into two subfamilies (for example, one that 
uses credits and one that generates credits for the same pollutant).
    (1) Identify any split engine families in your application for 
certification. Your engines must comply with all the standards and 
requirements applicable to Tier 4 engines, except as noted in this 
paragraph (f). You may calculate emission credits relative to different 
emission standards (i.e., phase-in and phase-out standards) for 
different sets of engines within the engine family, but the engine 
family must be certified to a single set of standards and FELs.

[[Page 102]]

To calculate NOX+NMHC emission credits, add the 
NOX FEL to the NMHC phase-in standard for comparison with the 
applicable NOX+NMHC phase-out standard. Any engine family 
certified under this paragraph (f) must meet the applicable phase-in 
standard for NMHC. You may assign the number and configurations of 
engines within the respective subfamilies any time before the due date 
for the final report required in Sec. 1039.730. Apply the same label to 
each engine in the family, including the NOX FEL to which it 
is certified.
    (2) For example, a 10,000-unit engine family in the 75-130 kW power 
category may be certified to meet the standards for PM, NMHC, and CO 
that apply to phase-in engines, with a 0.8 g/kW-hr FEL for 
NOX. When compared to the phase-out NOX+NMHC 
standard, this engine family would generate positive NOX+NMHC 
emission credits. When compared to the phase-in NOX standard, 
this engine family would generate negative NOX emission 
credits. You could create a subfamily with 2,500 engines (one-quarter of 
the 10,000 engines) and identify them as phase-in engines. You would 
count these 2,500, with their negative NOX credits, in 
determining compliance with the 50-percent phase-in requirement in 
paragraph (c)(1) of this section. You would calculate negative credits 
relative to the 0.40 g/kW-hr NOX standard for these 2,500 
engines. You would identify the other 7,500 engines in the family as 
phase-out engines and calculate positive credits relative to the 4.0 g/
kW-hr NOX+NMHC standard.
    (g) Other provisions. The provisions of Sec. 1039.101(d) through 
(h) apply with respect to the standards of this section, with the 
following exceptions and special provisions:
    (1) NTE standards. Use the provisions of Sec. 1039.101(e)(3) to 
calculate and apply the NTE standards, but base these calculated values 
on the applicable standards in this section or the applicable FEL, 
instead of the standards in Table 1 of Sec. 1039.101. All other 
provisions of Sec. 1039.101(e) apply under this paragraph (g)(1). The 
NTE standards do not apply for certain engines and certain pollutants, 
as follows:
    (i) All engines below 37 kW for model years before 2013.
    (ii) All engines certified under Option 1 of Table 3 of 
this section. These are small-volume manufacturer engines certified to 
the Option 1 standards for model years 2008 through 2015 under 
Sec. 1039.104(c), and other engines certified to the Option 1 
standards for model years 2008 through 2012.
    (iii) All engines less than or equal to 560 kW that are certified to 
an FEL under the alternate FEL program during the first four years of 
the Tier 4 standards for the applicable power category, as described in 
Sec. 1039.104(g). However, if you apply to meet transient emission 
standards for these engines under Sec. 1039.102(a)(1)(iii), you must 
also meet the NTE standards in this paragraph (g)(1).
    (iv) Gaseous pollutants for phase-out engines that you certify to 
the same numerical standards and FELs for gaseous pollutants to which 
you certified under the Tier 3 requirements of 40 CFR part 89. However, 
the NTE standards for PM apply to these engines.
    (2) Interim FEL caps. As described in Sec. 1039.101(d), you may 
participate in the ABT program in subpart H of this part by certifying 
engines to FELs for PM, NOX, or NOX+NMHC instead 
of the standards in Tables 1 through 7 of this section for the model 
years shown. The FEL caps listed in the following table apply instead of 
the FEL caps in Sec. 1039.101(d)(1), except as allowed by Sec. 
1039.104(g):

                          Table 8 of Sec.  1039.102--Interim Tier 4 FEL Caps, g/kW-hr
----------------------------------------------------------------------------------------------------------------
                                                             Model years
       Maximum  engine power           Phase-in  option          \1\            PM          NOX        NOX+NMHC
----------------------------------------------------------------------------------------------------------------
kW < 19...........................  .....................       2008-2014         0.80  ...........      \2\ 9.5
19 <= kW < 37.....................  .....................       2008-2012         0.60  ...........          9.5
37 <= kW < 56.....................  .....................   \3\ 2008-2012         0.40  ...........          7.5
56 <= kW < 130....................  phase-in.............       2012-2013         0.04         0.80  ...........
56 <= kW < 130....................  phase-out............       2012-2013         0.04  ...........      \4\ 6.6
130 <= kW <= 560..................  phase-in.............       2011-2013         0.04         0.80  ...........
130 <= kW <= 560..................  phase-out............       2011-2013         0.04  ...........      \5\ 6.4

[[Page 103]]

 
kW  560................  .....................       2011-2014         0.20          6.2  ...........
----------------------------------------------------------------------------------------------------------------
\1\ For model years before 2015 where this table does not specify FEL caps, apply the FEL caps shown in Sec.
  1039.101.
\2\ For engines below 8 kW, the FEL cap is 10.5 g/kW-hr for NOX+NMHC emissions.
\3\ For manufacturers certifying engines to the standards of this part 1039 in 2012 under Option 2 of
  Table 3 of Sec.  1039.102, the FEL caps for 37-56 kW engines in the 19-56 kW category of Table 2 of Sec.
  1039.101 apply for model year 2012 and later; see 40 CFR part 89 for provisions that apply to earlier model
  years.
\4\ For engines below 75 kW, the FEL cap is 7.5 g/kW-hr for NOX+NMHC emissions.
\5\ For engines below 225 kW, the FEL cap is 6.6 g/kW-hr for NOX+NMHC emissions.

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

[69 FR 39213, June 29, 2004, as amended at 72 FR 53130, Sept. 18, 2007; 
73 FR 59191, Oct. 8, 2008; 75 FR 68461, Nov. 8, 2010]



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

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

[[Page 104]]



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

    (3) Example: If you produce 100 engines in the 56-130 kW power 
category in model year 2008 that are certified to the 56-130 kW 
standards listed in Sec. 1039.101, and you produced 10,000 engines in 
this power category in model year 2015, then only 9,850 of these model 
year 2015 engines would need to comply with the standards listed in 
Sec. 1039.101. The 100 offset-generating engines in model year 2008 
could not use or generate ABT credits.
    (4) Offset-using engines (that is, those not required to certify to 
the standards of Sec. 1039.101 or Sec. 1039.102 under paragraph (a)(2) 
of this section) are subject to the following provisions:
    (i) If the offset is being used under paragraph (a)(2)(i) of this 
section for an engine that would otherwise be certified to the model 
year 2013 or 2014 standards in Table 2 of Sec. 1039.102 or the 
standards in Table 1 of Sec. 1039.101, this engine must be certified to 
the standards and requirements of this part 1039, except that the only 
PM standard that applies is the steady-state PM standard that applies 
for model year 2012. Such an engine may not generate ABT credits.
    (ii) If the offset is being used under paragraph (a)(2)(ii) of this 
section for an engine that would otherwise be certified to the phase-out 
standards in Tables 4 through 6 of Sec. 1039.102, this engine must be 
certified to the standards and requirements of this part 1039, except 
that the PM standard is the Tier 3 PM standard that applies for this 
engine's maximum power. Such an engine will be treated as a phase-out 
engine for purposes of determining compliance with percentage phase-in 
requirements. Such an engine may not generate ABT credits.
    (iii) All other offset-using engines must meet the standards and 
other provisions that apply in model year 2011 for engines in the 19-130 
kW power categories, in model year 2010 for engines in the 130-560 kW 
power category, or in model year 2014 for engines above 560 kW. Show 
that engines meet these emission standards by meeting all the 
requirements of Sec. 1068.265. You must meet the labeling requirements 
in Sec. 1039.135, but add the following statement instead of the 
compliance statement in Sec. 1039.135(c)(12): ``THIS ENGINE MEETS U.S. 
EPA EMISSION STANDARDS UNDER 40 CFR 1039.104(a).'' For power categories 
with a percentage phase-in, these engines should be treated as phase-in 
engines for purposes of determining compliance with phase-in 
requirements.
    (5) If an equipment manufacturer claims offsets from your engine for 
use under Sec. 1039.627, the engine generating the offset must comply 
with the requirements of paragraph (a)(1) of this section. You may not 
generate offsets for use under paragraphs (a)(2) and (5) of this section 
for these engines. You may generate ABT credits from these engines as 
follows:
    (i) To generate emission credits for NOX, 
NOX+NMHC, and PM, the engine must be certified to FELs at or 
below

[[Page 105]]

the standards in paragraph (a)(2) of this section.
    (ii) Calculate credits according to Sec. 1039.705 but use as the 
applicable standard the numerical value of the standard to which the 
engine would have otherwise been subject if it had not been certified 
under this paragraph (a).
    (iii) For the production volume, use the number of engines certified 
under this paragraph (a) for which you do not claim offsets under 
paragraph (a)(2) of this section.
    (6) You may include engines used to generate offsets under this 
paragraph (a) and engines used to generate offsets under Sec. 1039.627 
in the same engine family, subject to the provisions of Sec. 1039.230. 
The engine must be certified to FELs, as specified in paragraph 
(a)(5)(i) of this section. The FELs must be below the standard levels 
specified in paragraph (a)(2) of this section and those specified in 
Sec. 1039.627. In the reports required in Sec. 1039.730, include the 
following information for each model year:
    (i) The total number of engines that generate offsets under this 
paragraph (a).
    (ii) The number of engines used to generate offsets under paragraph 
(a)(2) of this section.
    (iii) The names of equipment manufacturers that intend to use your 
offsets under Sec. 1039.627 and the number of offsets involved for each 
equipment manufacturer.
    (b) In-use compliance limits. For purposes of determining compliance 
after title or custody has transferred to the ultimate purchaser, 
calculate the applicable in-use compliance limits by adjusting the 
applicable standards or FELs. This applies only for engines at or above 
19 kW. The NOX adjustment applies only for engines with a 
NOX FEL no higher than 2.1 g/kW-hr The PM adjustment applies 
only for engines with a PM FEL no higher than the PM standard in Sec. 
1039.101 for the appropriate power category. Add the following 
adjustments to the otherwise applicable standards or FELs (steady-state, 
transient, and NTE) for NOX and PM:

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

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

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

[[Page 106]]

 
56 <= kW < 130...........................  The standards and                   2015  The standards and
                                            requirements of this part.                requirements in 40 CFR
                                                                                      part 89.
----------------------------------------------------------------------------------------------------------------

    (2) To use the provisions of this paragraph (c) for engines at or 
above 37 kW and below 56 kW, choose one of the following:
    (i) If you comply with the 0.30 g/kW-hr PM standard in Sec. 
1039.102 in all model years from 2008 through 2012 without using PM 
credits, you may continue meeting that standard through 2015.
    (ii) If you do not choose to comply with paragraph (c)(2)(i) of this 
section, you may continue to comply with the standards and requirements 
in 40 CFR part 89 for model years through 2012, but you must begin 
complying in 2013 with Tier 4 standards and requirements specified in 
Table 3 of Sec. 1039.102 for model years 2013 and later.
    (3) After the delays indicated in paragraph (c)(1) and (2) of this 
section, you must comply with the same Tier 4 standards and requirements 
as all other manufacturers.
    (4) For engines not in the 19-56 kW power category, if you delay 
compliance with any standards under this paragraph (c), you must do all 
the following things for the model years when you are delaying 
compliance with the otherwise applicable standards:
    (i) Produce engines that meet all the emission standards and other 
requirements under 40 CFR part 89 applicable for that model year, except 
as noted in this paragraph (c).
    (ii) Meet the labeling requirements in 40 CFR 89.110, but use the 
following compliance statement instead of the compliance statement in 40 
CFR 89.110(b)(10): ``THIS ENGINE COMPLIES WITH U.S. EPA REGULATIONS FOR 
[CURRENT MODEL YEAR] NONROAD COMPRESSION-IGNITION ENGINES UNDER 40 CFR 
1039.104(c).''.
    (iii) Notify the equipment manufacturer that the engines you produce 
under this section are excluded from the production volumes associated 
with the equipment-manufacturer allowance program in Sec. 1039.625.
    (5) For engines in the 19-56 kW power category, if you delay 
compliance with any standards under this paragraph (c), you must do all 
the following things for the model years when you are delaying 
compliance with the otherwise applicable standards:
    (i) Produce engines in those model years that meet all the emission 
standards and other requirements that applied for your model year 2008 
engines in the same power category.
    (ii) Meet the labeling requirements in Sec. 1039.135, but use the 
following compliance statement instead of the compliance statement in 
Sec. 1039.135: ``THIS ENGINE COMPLIES WITH U.S. EPA REGULATIONS FOR 
[CURRENT MODEL YEAR] NONROAD COMPRESSION-IGNITION ENGINES UNDER 40 CFR 
1039.104(c).''.
    (iii) Notify the equipment manufacturer that the engines you produce 
under this section are excluded from the production volumes associated 
with the equipment-manufacturer allowance program in Sec. 1039.625.
    (6) The provisions of this paragraph (c) may not be used to 
circumvent the requirements of this part.
    (d) Deficiencies for NTE standards. You may ask us to accept as 
compliant an engine that does not fully meet specific requirements under 
the applicable NTE standards. Such deficiencies are intended to allow 
for minor deviations from the NTE standards under limited conditions. We 
expect your engines to have functioning emission-control hardware that 
allows you to comply with the NTE standards.
    (1) Request our approval for specific deficiencies in your 
application for certification, or before you submit your application. We 
will not approve deficiencies retroactively to cover engines already 
certified. In your request, identify the scope of each deficiency and 
describe any auxiliary emission-control devices you will use to control 
emissions to the lowest practical level, considering the deficiency you 
are requesting.
    (2) We will approve a deficiency only if compliance would be 
infeasible or

[[Page 107]]

unreasonable considering such factors as the technical feasibility of 
the given hardware and the applicable lead time and production cycles--
including schedules related to phase-in or phase-out of engines. We may 
consider other relevant factors.
    (3) Our approval applies only for a single model year and may be 
limited to specific engine configurations. We may approve your request 
for the same deficiency in the following model year if correcting the 
deficiency would require unreasonable hardware or software modifications 
and we determine that you have demonstrated an acceptable level of 
effort toward complying.
    (4) You may ask for any number of deficiencies in the first three 
model years during which NTE standards apply for your engines. For the 
next four model years, we may approve up to three deficiencies per 
engine family. Deficiencies of the same type that apply similarly to 
different power ratings within a family count as one deficiency per 
family. We may condition approval of any such additional deficiencies 
during these four years on any additional conditions we determine to be 
appropriate. We will not approve deficiencies after the seven-year 
period specified in this paragraph (d)(4).
    (e) Diesel test fuels and corresponding labeling requirements. For 
diesel-fueled engines in 2011 and later model years, the diesel test 
fuel is ultra low-sulfur diesel fuel specified in 40 CFR part 1065. For 
diesel-fueled engines in 2010 and earlier model years, use test fuels 
and meet labeling requirements as follows:
    (1) Use the following test fuels in 2010 and earlier model years:
    (i) Unless otherwise specified, the diesel test fuel is low-sulfur 
diesel fuel specified in 40 CFR part 1065.
    (ii) In model years 2007 through 2010, you may use ultra low-sulfur 
diesel fuel as the test fuel for any engine family that employs sulfur-
sensitive technology if you can demonstrate that in-use engines in the 
family will use diesel fuel with a sulfur concentration no greater than 
15 ppm.
    (iii) You may use ultra low-sulfur diesel fuel as the test fuel for 
engine families in any power category below 56 kW, as long as none of 
the engines in your engine family employ sulfur-sensitive technologies, 
you ensure that ultimate purchasers of equipment using these engines are 
informed that ultra low-sulfur diesel fuel is recommended, and you 
recommend to equipment manufacturers that a label be applied at the fuel 
inlet recommending 15 ppm fuel.
    (iv) For the engines described in Sec. 1039.101(c) that are 
certified to the 0.60 g/kW-hr PM standard in Table 1 of Sec. 1039.102 
in the 2010 model year, you may test with the ultra low-sulfur fuel 
specified in 40 CFR part 1065.
    (2) Meet the labeling requirements of this paragraph (e)(2) (or 
other labeling requirements we approve) to identify the applicable test 
fuels specified in paragraph (e)(1) of this section. Provide 
instructions to equipment manufacturers to ensure that they are aware of 
these labeling requirements.
    (i) For engines certified under the provisions of paragraph 
(e)(1)(i) of this section, include the following statement on the 
emission control information label and the fuel-inlet label specified in 
Sec. 1039.135: ``LOW SULFUR FUEL OR ULTRA LOW SULFUR FUEL ONLY''.
    (ii) For engines certified under the provisions of paragraph 
(e)(1)(ii) of this section, include the following statement on the 
emission control information label and the fuel-inlet label specified in 
Sec. 1039.135: ``ULTRA LOW SULFUR FUEL ONLY''.
    (iii) For engines certified under the provisions of paragraph 
(e)(1)(iii) of this section, include the following statement on the 
emission control information label specified in Sec. 1039.135: ``ULTRA 
LOW SULFUR FUEL RECOMMENDED''.
    (3) For model years 2010 and earlier, we will use the test fuel that 
you use under paragraph (e)(1) of this section, subject to the 
conditions of paragraph (e)(1) of this section.
    (f) Requirements for equipment manufacturers. If you produce 
equipment with engines certified to Tier 3 standards under Option 
2 of Table 3 of Sec. 1039.102 during model years from 2008 
through 2011, then a minimum number of pieces of equipment you produce 
using 2012 model year engines must have engines certified to the Option 
2 standards, as follows:

[[Page 108]]

    (1) For equipment you produce with 2012 model year engines at or 
above 37 kW and below 56 kW, determine the minimum number of these 
engines that must be certified to the Option 2 standards in 
Table 3 of Sec. 1039.102 as follows:
    (i) If all the equipment you produce using 2008 through 2011 model 
year engines use engines certified to Tier 3 standards under Option 
2 of Table 3 of Sec. 1039.102, then all the 2012 model year 
engines you install must be certified to the Option 2 standards 
of Table 3 of Sec. 1039.102.
    (ii) If you produce equipment using 2008 through 2011 model year 
engines with some engines certified to Option 1 standards of 
Table 3 of Sec. 1039.102 and some engines certified to Tier 3 standards 
under Option 2 standards of Table 3 of Sec. 1039.102, 
calculate the minimum number of 2012 model year engines you must install 
that are certified to the Option 2 standards of Table 3 of 
Sec. 1039.102 from the following equation:

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

Where:

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

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

FELadj = (FELss) x (TCAF)

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

[[Page 109]]



                                 Table 1 of Sec.  1039.104--Alternate FEL Caps
----------------------------------------------------------------------------------------------------------------
                                                                    Model years                     Model years
                                                  PM FEL cap, g/      for the     NOX FEL cap, g/     for the
              Maximum engine power                     kW-hr       alternate PM        kW-hr       alternate NOX
                                                                      FEL cap                         FEL cap
----------------------------------------------------------------------------------------------------------------
19 <= kW < 56...................................            0.30   \1\ 2012-2015  ..............  ..............
56 <= kW < 130 \2\..............................            0.30       2012-2015             3.8   \3\ 2012-2015
130 <= kW <= 560................................            0.20       2011-2014             3.8   \4\ 2011-2014
kW  560 \5\..........................            0.10       2015-2018             3.5       2015-2018
----------------------------------------------------------------------------------------------------------------
\1\ For manufacturers certifying engines under Option 1 of Table 3 of Sec.  1039.102, these alternate
  FEL caps apply to all 19-56 kW engines for model years from 2013 through 2016 instead of in the years
  indicated in this table. For manufacturers certifying engines under Option 2 of Table 3 of Sec.
  1039.102, these alternate FEL caps do not apply to 19-37 kW engines except in model years 2013 to 2015.
\2\ For engines below 75 kW, the FEL caps are 0.40 g/kW-hr for PM emissions and 4.4 g/kW-hr for NOX emissions.
\3\ For manufacturers certifying engines in this power category using a percentage phase-in/phase-out approach
  instead of the alternate NOX standards of Sec.  1039.102(e)(1), the alternate NOX FEL cap in the table
  applies only in the 2014-2015 model years if certifying under Sec.  1039.102(d)(1), and only in the 2015
  model year if certifying under (1039.102(d)(2).
\4\ For manufacturers certifying engines in this power category using the percentage phase-in/phase-out approach
  instead of the alternate NOX standard of Sec.  1039.102(e)(2), the alternate NOX FEL cap in the table applies
  only for the 2014 model year.
\5\ For engines above 560 kW, the provision for alternate NOX FEL caps is limited to generator-set engines. For
  example, if you produce 1,000 generator-set engines above 560 kW in 2015, up to 200 of them may be certified
  to the alternate NOX FEL caps.

    (5) You may certify engines under this paragraph (g) without regard 
to whether or not the engine family's FEL is at or below the otherwise 
applicable FEL cap. For example, a 200 kW engine certified to the 
NOX + NMHC standard of Sec. 1039.102(e)(3) with an FEL equal 
to the FEL cap of 2.8 g/kW-hr may be certified under this paragraph (g) 
and count toward the sales limit specified in paragraph (g)(1) of this 
section.
    (h) Delayed compliance with labeling requirements. Before the 2011 
model year, you may omit the dates of manufacture from the emission 
control information label as specified in Sec. 1039.135(c)(6) if you 
keep those records and provide them to us upon request.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40462, July 13, 2005; 
72 FR 53130, Sept. 18, 2007; 75 FR 22988, Apr. 30, 2010; 75 FR 68461, 
Nov. 8, 2010]



Sec. 1039.105  What smoke standards must my engines meet?

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



Sec. 1039.107  What evaporative emission standards and requirements apply?

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



Sec. 1039.110  [Reserved]



Sec. 1039.115  What other requirements apply?

    Engines that are required to meet the emission standards of this 
part

[[Page 110]]

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

[69 FR 39213, June 29, 2004, as amended at 72 FR 53130, Sept. 18, 2007]



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

    (a) General requirements. You must warrant to the ultimate purchaser 
and each subsequent purchaser that the new nonroad engine, including all 
parts of its emission-control system, meets two conditions:
    (1) It is designed, built, and equipped so it conforms at the time 
of sale to the ultimate purchaser with the requirements of this part.
    (2) It is free from defects in materials and workmanship that may 
keep it from meeting these requirements.
    (b) Warranty period. Your emission-related warranty must be valid 
for at least as long as the minimum warranty periods listed in this 
paragraph (b) in hours of operation and years, whichever comes first. 
You may offer an emission-related warranty more generous than we 
require. The emission-related warranty for the engine may not be shorter 
than any published warranty you offer without charge for the engine. 
Similarly, the emission-related warranty for any component may not be 
shorter than any published warranty you offer without charge for that 
component. If an engine has no hour meter, we base the warranty periods 
in this paragraph (b) only on the engine's age (in years). The warranty 
period begins when the engine is placed into service. The minimum 
warranty periods are shown in the following table:

[[Page 111]]



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

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

[69 FR 39213, June 29, 2004, as amended at 70 FR 40463, July 13, 2005; 
75 FR 22989, Apr. 30, 2010]



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

    Give the ultimate purchaser of each new nonroad engine written 
instructions for properly maintaining and using the engine, including 
the emission-control system. The maintenance instructions also apply to 
service accumulation on your emission-data engines, as described in 
Sec. 1039.245 and in 40 CFR part 1065.
    (a) Critical emission-related maintenance. Critical emission-related 
maintenance includes any adjustment, cleaning, repair, or replacement of 
critical emission-related components. This may also include additional 
emission-related maintenance that you determine is critical if we 
approve it in advance. You may schedule critical emission-related 
maintenance on these components if you meet the following conditions:
    (1) You demonstrate that the maintenance is reasonably likely to be 
done at the recommended intervals on in-use engines. We will accept 
scheduled maintenance as reasonably likely to occur if you satisfy any 
of the following conditions:
    (i) You present data showing that, if a lack of maintenance 
increases emissions, it also unacceptably degrades the engine's 
performance.
    (ii) You present survey data showing that at least 80 percent of 
engines in the field get the maintenance you specify at the recommended 
intervals.
    (iii) You provide the maintenance free of charge and clearly say so 
in your maintenance instructions.
    (iv) You otherwise show us that the maintenance is reasonably likely 
to be done at the recommended intervals.
    (2) For engines below 130 kW, you may not schedule critical 
emission-related maintenance more frequently than the following minimum 
intervals, except as specified in paragraphs (a)(4), (b), and (c) of 
this section:
    (i) For EGR-related filters and coolers, PCV valves, crankcase vent 
filters, and fuel injector tips (cleaning only), the minimum interval is 
1,500 hours.
    (ii) For the following components, including associated sensors and 
actuators, the minimum interval is 3,000 hours: Fuel injectors, 
turbochargers, catalytic converters, electronic control units, EGR 
systems (including related components, but excluding filters and 
coolers), and other add-on components.

[[Page 112]]

    (3) For engines at or above 130 kW, you may not schedule critical 
emission-related maintenance more frequently than the following minimum 
intervals, except as specified in paragraphs (a)(4), (b), and (c) of 
this section:
    (i) For EGR-related filters and coolers, PCV valves, crankcase vent 
filters, and fuel injector tips (cleaning only), the minimum interval is 
1,500 hours.
    (ii) For the following components, including associated sensors and 
actuators, the minimum interval is 4,500 hours: Fuel injectors, 
turbochargers, catalytic converters, electronic control units, EGR 
systems (including related components, but excluding filters and 
coolers), and other add-on components.
    (4) For particulate traps, trap oxidizers, and components related to 
either of these, scheduled maintenance may include cleaning or repair at 
the intervals specified in paragraph (a)(2) or (3) of this section, as 
applicable. Scheduled maintenance may include a shorter interval for 
cleaning or repair and may also include adjustment or replacement, but 
only if we approve it. We will approve your request if you provide the 
maintenance free of charge and clearly state this in your maintenance 
instructions, and you provide us additional information as needed to 
convince us that the maintenance will occur.
    (5) You may ask us to approve a maintenance interval shorter than 
that specified in paragraphs (a)(2) and (3) of this section under Sec. 
1039.210, including emission-related components that were not in 
widespread use with nonroad compression-ignition engines before 2011. In 
your request you must describe the proposed maintenance step, recommend 
the maximum feasible interval for this maintenance, include your 
rationale with supporting evidence to support the need for the 
maintenance at the recommended interval, and demonstrate that the 
maintenance will be done at the recommended interval on in-use engines. 
In considering your request, we will evaluate the information you 
provide and any other available information to establish alternate 
specifications for maintenance intervals, if appropriate. We will 
announce any decision we make under this paragraph (a)(5) in the Federal 
Register. Anyone may request a hearing regarding such a decision (see 
Sec. 1039.820).
    (6) If your engine family has an alternate useful life under Sec. 
1039.101(g) that is shorter than the period specified in paragraph 
(a)(2) or (a)(3) of this section, you may not schedule critical 
emission-related maintenance more frequently than the alternate useful 
life, except as specified in paragraph (c) of this section.
    (b) Recommended additional maintenance. You may recommend any 
additional amount of maintenance on the components listed in paragraph 
(a) of this section, as long as you state clearly that these maintenance 
steps are not necessary to keep the emission-related warranty valid. If 
operators do the maintenance specified in paragraph (a) of this section, 
but not the recommended additional maintenance, this does not allow you 
to disqualify those engines from in-use testing or deny a warranty 
claim. Do not take these maintenance steps during service accumulation 
on your emission-data engines.
    (c) Special maintenance. You may specify more frequent maintenance 
to address problems related to special situations, such as atypical 
engine operation. You must clearly state that this additional 
maintenance is associated with the special situation you are addressing. 
We may disapprove your maintenance instructions if we determine that you 
have specified special maintenance steps to address engine operation 
that is not atypical, or that the maintenance is unlikely to occur in 
use. If we determine that certain maintenance items do not qualify as 
special maintenance under this paragraph (c), you may identify this as 
recommended additional maintenance under paragraph (b) of this section.
    (d) Noncritical emission-related maintenance. Subject to the 
provisions of this paragraph (d), you may schedule any amount of 
emission-related inspection or maintenance that is not covered by 
paragraph (a) of this section (that is, maintenance that is neither 
explicitly identified as critical emission-related maintenance, nor that 
we approve as critical emission-related maintenance).

[[Page 113]]

Noncritical emission-related maintenance generally includes maintenance 
on the components we specify in 40 CFR part 1068, Appendix I, that is 
not covered in paragraph (a) of this section. You must state in the 
owners manual that these steps are not necessary to keep the emission-
related warranty valid. If operators fail to do this maintenance, this 
does not allow you to disqualify those engines from in-use testing or 
deny a warranty claim. Do not take these inspection or maintenance steps 
during service accumulation on your emission-data engines.
    (e) Maintenance that is not emission-related. For maintenance 
unrelated to emission controls, you may schedule any amount of 
inspection or maintenance. You may also take these inspection or 
maintenance steps during service accumulation on your emission-data 
engines, as long as they are reasonable and technologically necessary. 
This might include adding engine oil, changing air, fuel, or oil 
filters, servicing engine-cooling systems, and adjusting idle speed, 
governor, engine bolt torque, valve lash, or injector lash. You may 
perform this nonemission-related maintenance on emission-data engines at 
the least frequent intervals that you recommend to the ultimate 
purchaser (but not the intervals recommended for severe service).
    (f) Source of parts and repairs. State clearly on the first page of 
your written maintenance instructions that a repair shop or person of 
the owner's choosing may maintain, replace, or repair emission-control 
devices and systems. Your instructions may not require components or 
service identified by brand, trade, or corporate name. Also, do not 
directly or indirectly condition your warranty on a requirement that the 
engine be serviced by your franchised dealers or any other service 
establishments with which you have a commercial relationship. You may 
disregard the requirements in this paragraph (f) if you do one of two 
things:
    (1) Provide a component or service without charge under the purchase 
agreement.
    (2) Get us to waive this prohibition in the public's interest by 
convincing us the engine will work properly only with the identified 
component or service.
    (g) Payment for scheduled maintenance. Owners are responsible for 
properly maintaining their engines. This generally includes paying for 
scheduled maintenance. However, manufacturers must pay for scheduled 
maintenance during the useful life if the regulations require it or if 
it meets all the following criteria:
    (1) Each affected component was not in general use on similar 
engines before the applicable dates shown in paragraph (6) of the 
definition of new nonroad engine in Sec. 1039.801.
    (2) The primary function of each affected component is to reduce 
emissions.
    (3) The cost of the scheduled maintenance is more than 2 percent of 
the price of the engine.
    (4) Failure to perform the maintenance would not cause clear 
problems that would significantly degrade the engine's performance.
    (h) Owners manual. Explain the owner's responsibility for proper 
maintenance in the owners manual.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40463, July 13, 2005; 
72 FR 53130, Sept. 18, 2007; 73 FR 59191, Oct. 8, 2008; 75 FR 22989, 
Apr. 30, 2010]



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

    (a) If you sell an engine for someone else to install in a piece of 
nonroad equipment, give the engine installer instructions for installing 
it consistent with the requirements of this part. Include all 
information necessary to ensure that an engine will be installed in its 
certified configuration.
    (b) Make sure these instructions have the following information:
    (1) Include the heading: ``Emission-related installation 
instructions''.
    (2) State: ``Failing to follow these instructions when installing a 
certified engine in a piece of nonroad equipment violates federal law 
(40 CFR 1068.105(b)), subject to fines or other penalties as described 
in the Clean Air Act.''.
    (3) Describe the instructions needed to properly install the exhaust 
system

[[Page 114]]

and any other components. Include instructions consistent with the 
requirements of Sec. 1039.205(u).
    (4) [Reserved]
    (5) Describe any limits on the range of applications needed to 
ensure that the engine operates consistently with your application for 
certification. For example, if your engines are certified only for 
constant-speed operation, tell equipment manufacturers not to install 
the engines in variable-speed applications.
    (6) Describe any other instructions to make sure the installed 
engine will operate according to design specifications in your 
application for certification. This may include, for example, 
instructions for installing aftertreatment devices when installing the 
engines.
    (7) State: ``If you install the engine in a way that makes the 
engine's emission control information label hard to read during normal 
engine maintenance, you must place a duplicate label on the equipment, 
as described in 40 CFR 1068.105.''.
    (8) Describe equipment-labeling requirements consistent with Sec. 
1039.135. State whether you are providing the label for the fuel inlet 
or the equipment manufacturer must provide the label.
    (c) You do not need installation instructions for engines you 
install in your own equipment.
    (d) Provide instructions in writing or in an equivalent format. For 
example, you may post instructions on a publicly available website for 
downloading or printing. If you do not provide the instructions in 
writing, explain in your application for certification how you will 
ensure that each installer is informed of the installation requirements.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40463, July 13, 2005]



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

    (a) Assign each engine a unique identification number and 
permanently affix, engrave, or stamp it on the engine in a legible way.
    (b) At the time of manufacture, affix a permanent and legible label 
identifying each engine. The label must be--
    (1) Attached in one piece so it is not removable without being 
destroyed or defaced. However, you may use two-piece labels for engines 
below 19 kW if there is not enough space on the engine to apply a one-
piece label.
    (2) Secured to a part of the engine needed for normal operation and 
not normally requiring replacement.
    (3) Durable and readable for the engine's entire life.
    (4) Written in English.
    (c) The label must--
    (1) Include the heading ``EMISSION CONTROL INFORMATION''.
    (2) Include your full corporate name and trademark. You may identify 
another company and use its trademark instead of yours if you comply 
with the provisions of Sec. 1039.640.
    (3) Include EPA's standardized designation for the engine family 
(and subfamily, where applicable).
    (4) State the power category or subcategory from Sec. 1039.101 or 
Sec. 1039.102 that determines the applicable emission standards for the 
engine family. For engines at or above 37 kW and below 56 kW from model 
years 2008 through 2012, and for engines less than 8 kW utilizing the 
provision at Sec. 1039.101(c), you must state the applicable PM 
standard for the engine family.
    (5) State the engine's displacement (in liters); however, you may 
omit this from the label if all the engines in the engine family have 
the same per-cylinder displacement and total displacement.
    (6) State the date of manufacture [DAY (optional), MONTH, and YEAR]; 
however, you may omit this from the label if you stamp, engrave, or 
otherwise permanently identify it elsewhere on the engine, in which case 
you must also describe in your application for certification where you 
will identify the date on the engine.
    (7) State the FELs to which the engines are certified if 
certification depends on the ABT provisions of subpart H of this part.
    (8) Identify the emission-control system. Use terms and 
abbreviations as described in 40 CFR 1068.45. You may omit this 
information from the label if there is not enough room for it and you 
put it in the owners manual instead.

[[Page 115]]

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

[69 FR 39213, June 29, 2004, as amended at 72 FR 53130, Sept. 18, 2007; 
73 FR 59191, Oct 8, 2008; 75 FR 22989, Apr. 30, 2010]



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

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

[[Page 116]]

    (d) Throughout this part, references to a specific power value or a 
range of power values for an engine are based on maximum engine power. 
For example, the group of engines with maximum engine power above 560 kW 
may be referred to as engines above 560 kW.



                  Subpart C_Certifying Engine Families



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

    (a) You must send us a separate application for a certificate of 
conformity for each engine family. A certificate of conformity is valid 
from the indicated effective date until December 31 of the model year 
for which it is issued.
    (b) The application must contain all the information required by 
this part and must not include false or incomplete statements or 
information (see Sec. 1039.255).
    (c) We may ask you to include less information than we specify in 
this subpart, as long as you maintain all the information required by 
Sec. 1039.250.
    (d) You must use good engineering judgment for all decisions related 
to your application (see 40 CFR 1068.5).
    (e) An authorized representative of your company must approve and 
sign the application.
    (f) See Sec. 1039.255 for provisions describing how we will process 
your application.
    (g) We may require you to deliver your test engines to a facility we 
designate for our testing (see Sec. 1039.235(c)).
    (h) For engines that become new after being placed into service, 
such as engines converted to nonroad use after being used in motor 
vehicles, we may specify alternate certification provisions consistent 
with the intent of this part. See the definition of ``new nonroad 
engine'' in Sec. 1039.801.

[69 FR 39213, June 29, 2004, as amended at 75 FR 22990, Apr. 30, 2010]



Sec. 1039.205  What must I include in my application?

    This section specifies the information that must be in your 
application, unless we ask you to include less information under Sec. 
1039.201(c). We may require you to provide additional information to 
evaluate your application.
    (a) Describe the engine family's specifications and other basic 
parameters of the engine's design and emission controls. List the fuel 
type on which your engines are designed to operate (for example, ultra 
low-sulfur diesel fuel). List each distinguishable engine configuration 
in the engine family. For each engine configuration, list the maximum 
engine power and the range of values for maximum engine power resulting 
from production tolerances, as described in Sec. 1039.140.
    (b) Explain how the emission-control system operates. Describe in 
detail all system components for controlling exhaust emissions, 
including all auxiliary-emission control devices (AECDs) and all fuel-
system components you will install on any production or test engine. 
Identify the part number of each component you describe. For this 
paragraph (b), treat as separate AECDs any devices that modulate or 
activate differently from each other. Include all the following:
    (1) Give a general overview of the engine, the emission-control 
strategies, and all AECDs.
    (2) Describe each AECD's general purpose and function.
    (3) Identify the parameters that each AECD senses (including 
measuring, estimating, calculating, or empirically deriving the values). 
Include equipment-based parameters and state whether you simulate them 
during testing with the applicable procedures.
    (4) Describe the purpose for sensing each parameter.
    (5) Identify the location of each sensor the AECD uses.
    (6) Identify the threshold values for the sensed parameters that 
activate the AECD.
    (7) Describe the parameters that the AECD modulates (controls) in 
response to any sensed parameters, including the range of modulation for 
each parameter, the relationship between the sensed parameters and the 
controlled parameters and how the modulation achieves the AECD's stated 
purpose. Use graphs and tables, as necessary.
    (8) Describe each AECD's specific calibration details. This may be 
in the

[[Page 117]]

form of data tables, graphical representations, or some other 
description.
    (9) Describe the hierarchy among the AECDs when multiple AECDs sense 
or modulate the same parameter. Describe whether the strategies interact 
in a comparative or additive manner and identify which AECD takes 
precedence in responding, if applicable.
    (10) Explain the extent to which the AECD is included in the 
applicable test procedures specified in subpart F of this part.
    (11) Do the following additional things for AECDs designed to 
protect engines or equipment:
    (i) Identify the engine and/or equipment design limits that make 
protection necessary and describe any damage that would occur without 
the AECD.
    (ii) Describe how each sensed parameter relates to the protected 
components' design limits or those operating conditions that cause the 
need for protection.
    (iii) Describe the relationship between the design limits/parameters 
being protected and the parameters sensed or calculated as surrogates 
for those design limits/parameters, if applicable.
    (iv) Describe how the modulation by the AECD prevents engines and/or 
equipment from exceeding design limits.
    (v) Explain why it is necessary to estimate any parameters instead 
of measuring them directly and describe how the AECD calculates the 
estimated value, if applicable.
    (vi) Describe how you calibrate the AECD modulation to activate only 
during conditions related to the stated need to protect components and 
only as needed to sufficiently protect those components in a way that 
minimizes the emission impact.
    (c) [Reserved]
    (d) Describe the engines you selected for testing and the reasons 
for selecting them.
    (e) Describe the test equipment and procedures that you used, 
including any special or alternate test procedures you used (see Sec. 
1039.501).
    (f) Describe how you operated the emission-data engine before 
testing, including the duty cycle and the number of engine operating 
hours used to stabilize emission levels. Explain why you selected the 
method of service accumulation. Describe any scheduled maintenance you 
did.
    (g) List the specifications of the test fuel to show that it falls 
within the required ranges we specify in 40 CFR part 1065.
    (h) Identify the engine family's useful life.
    (i) Include the maintenance instructions you will give to the 
ultimate purchaser of each new nonroad engine (see Sec. 1039.125).
    (j) Include the emission-related installation instructions you will 
provide if someone else installs your engines in a piece of nonroad 
equipment (see Sec. 1039.130).
    (k) Describe your emission control information label (see Sec. 
1039.135).
    (l) Identify the emission standards or FELs to which you are 
certifying engines in the engine family. Identify the ambient operating 
regions that will apply for NTE testing under Sec. 1039.101(e)(4).
    (m) Identify the engine family's deterioration factors and describe 
how you developed them (see Sec. 1039.245). Present any emission test 
data you used for this.
    (n) State that you operated your emission-data engines as described 
in the application (including the test procedures, test parameters, and 
test fuels) to show you meet the requirements of this part.
    (o) Present emission data for hydrocarbons (such as NMHC or THCE, as 
applicable), NOX, PM, and CO on an emission-data engine to 
show your engines meet the applicable duty-cycle emission standards we 
specify in Sec. 1039.101. Show emission figures before and after 
applying adjustment factors for regeneration and deterioration factors 
for each engine. Include emission results for each mode if you do 
discrete-mode testing under Sec. 1039.505. Present emission data to 
show that you meet any applicable smoke standards we specify in Sec. 
1039.105. If we specify more than one grade of any fuel type (for 
example, high-sulfur and low-sulfur diesel fuel), you need to submit 
test data only for one grade, unless the regulations of this part 
specify otherwise

[[Page 118]]

for your engine. Note that Sec. 1039.235 allows you to submit an 
application in certain cases without new emission data.
    (p) State that all the engines in the engine family comply with the 
not-to-exceed emission standards we specify in subpart B of this part 
for all normal operation and use when tested as specified in Sec. 
1039.515. Describe any relevant testing, engineering analysis, or other 
information in sufficient detail to support your statement.
    (q) For engines above 560 kW, include information showing how your 
emission controls will function during normal in-use transient 
operation. For example, this might include the following:
    (1) Emission data from transient testing of engines using 
measurement systems designed for measuring in-use emissions.
    (2) Comparison of the engine design for controlling transient 
emissions with that from engines for which you have emission data over 
the transient duty cycle for certification.
    (3) Detailed descriptions of control algorithms and other design 
parameters for controlling transient emissions.
    (r) Report test results as follows:
    (1) Report all test results involving measurement of pollutants for 
which emission standards apply. Include test results from invalid tests 
or from any other tests, whether or not they were conducted according to 
the test procedures of subpart F of this part. We may ask you to send 
other information to confirm that your tests were valid under the 
requirements of this part and 40 CFR part 1065.
    (2) Report measured CO2, N2O, and 
CH4 as described in Sec. 1039.235. Small-volume engine 
manufacturers may omit reporting N2O and CH4.
    (s) Describe all adjustable operating parameters (see Sec. 
1039.115(e)), including production tolerances. Include the following in 
your description of each parameter:
    (1) The nominal or recommended setting.
    (2) The intended physically adjustable range.
    (3) The limits or stops used to establish adjustable ranges.
    (4) Information showing why the limits, stops, or other means of 
inhibiting adjustment are effective in preventing adjustment of 
parameters on in-use engines to settings outside your intended 
physically adjustable ranges.
    (t) Provide the information to read, record, and interpret all the 
information broadcast by an engine's onboard computers and electronic 
control units. State that, upon request, you will give us any hardware, 
software, or tools we would need to do this. If you broadcast a 
surrogate parameter for torque values, you must provide us what we need 
to convert these into torque units. You may reference any appropriate 
publicly released standards that define conventions for these messages 
and parameters. Format your information consistent with publicly 
released standards.
    (u) Confirm that your emission-related installation instructions 
specify how to ensure that sampling of exhaust emissions will be 
possible after engines are installed in equipment and placed in service. 
If this cannot be done by simply adding a 20-centimeter extension to the 
exhaust pipe, show how to sample exhaust emissions in a way that 
prevents diluting the exhaust sample with ambient air.
    (v) State whether your certification is intended to include engines 
used in stationary applications. State whether your certification is 
limited for certain engines. If this is the case, describe how you will 
prevent use of these engines in applications for which they are not 
certified. This applies for engines such as the following:
    (1) Constant-speed engines.
    (2) Engines used for transportation refrigeration units that you 
certify under the provisions of Sec. 1039.645.
    (3) Hand-startable engines certified under the provisions of Sec. 
1039.101(c).
    (4) Engines above 560 KW that are not certified to emission 
standards for generator-set engines.
    (w) Unconditionally certify that all the engines in the engine 
family comply with the requirements of this part, other referenced parts 
of the CFR, and the Clean Air Act.
    (x) Include good-faith estimates of U.S.-directed production 
volumes. Include a justification for the estimated

[[Page 119]]

production volumes if they are substantially different than actual 
production volumes in earlier years for similar models.
    (y) Include the information required by other subparts of this part. 
For example, include the information required by Sec. 1039.725 if you 
participate in the ABT program.
    (z) Include other applicable information, such as information 
specified in this part or 40 CFR part 1068 related to requests for 
exemptions.
    (aa) Name an agent for service located in the United States. Service 
on this agent constitutes service on you or any of your officers or 
employees for any action by EPA or otherwise by the United States 
related to the requirements of this part.

[69 FR 39213, June 29, 2004, as amended at 71 FR 39185, July 11, 2006; 
72 FR 53131, Sept. 18, 2007; 74 FR 56508, Oct. 30, 2009]



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

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

[72 FR 53131, Sept. 18, 2007]



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

    You may amend your emission-related maintenance instructions after 
you submit your application for certification as long as the amended 
instructions remain consistent with the provisions of Sec. 1039.125. 
You must send the Designated Compliance Officer a written request to 
amend your application for certification for an engine family if you 
want to change the emission-related maintenance instructions in a way 
that could affect emissions. In your request, describe the proposed 
changes to the maintenance instructions. If operators follow the 
original maintenance instructions rather than the newly specified 
maintenance, this does not allow you to disqualify those engines from 
in-use testing or deny a warranty claim.
    (a) If you are decreasing or eliminating any specified maintenance, 
you may distribute the new maintenance instructions to your customers 30 
days after we receive your request, unless we disapprove your request. 
This would generally include replacing one maintenance step with 
another. We may approve a shorter time or waive this requirement.
    (b) If your requested change would not decrease the specified 
maintenance, you may distribute the new maintenance instructions anytime 
after you send your request. For example, this paragraph (b) would cover 
adding instructions to increase the frequency of filter changes for 
engines in severe-duty applications.
    (c) You need not request approval if you are making only minor 
corrections (such as correcting typographical mistakes), clarifying your 
maintenance instructions, or changing instructions for maintenance 
unrelated to emission control. We may ask you to send us copies of 
maintenance instructions revised under this paragraph (c).

[75 FR 22990, Apr. 30, 2010]



Sec. 1039.225  How do I amend my application for certification?

    Before we issue you a certificate of conformity, you may amend your 
application to include new or modified engine configurations, subject to 
the provisions of this section. After we have issued your certificate of 
conformity, you may send us an amended application requesting that we 
include new or modified engine configurations

[[Page 120]]

within the scope of the certificate, subject to the provisions of this 
section. You must amend your application if any changes occur with 
respect to any information that is included or should be included in 
your application.
    (a) You must amend your application before you take any of the 
following actions:
    (1) Add an engine configuration to an engine family. In this case, 
the engine configuration added must be consistent with other engine 
configurations in the engine family with respect to the criteria listed 
in Sec. 1039.230.
    (2) Change an engine configuration already included in an engine 
family in a way that may affect emissions, or change any of the 
components you described in your application for certification. This 
includes production and design changes that may affect emissions any 
time during the engine's lifetime.
    (3) Modify an FEL for an engine family as described in paragraph (f) 
of this section.
    (b) To amend your application for certification, send the relevant 
information to the Designated Compliance Officer.
    (1) Describe in detail the addition or change in the engine model or 
configuration you intend to make.
    (2) Include engineering evaluations or data showing that the amended 
engine family complies with all applicable requirements. You may do this 
by showing that the original emission-data engine is still appropriate 
for showing that the amended family complies with all applicable 
requirements.
    (3) If the original emission-data engine for the engine family is 
not appropriate to show compliance for the new or modified engine 
configuration, include new test data showing that the new or modified 
engine configuration meets the requirements of this part.
    (c) We may ask for more test data or engineering evaluations. You 
must give us these within 30 days after we request them.
    (d) For engine families already covered by a certificate of 
conformity, we will determine whether the existing certificate of 
conformity covers your newly added or modified engine. You may ask for a 
hearing if we deny your request (see Sec. 1039.820).
    (e) For engine families already covered by a certificate of 
conformity, you may start producing the new or modified engine 
configuration anytime after you send us your amended application and 
before we make a decision under paragraph (d) of this section. However, 
if we determine that the affected engines do not meet applicable 
requirements, we will notify you to cease production of the engines and 
may require you to recall the engines at no expense to the owner. 
Choosing to produce engines under this paragraph (e) is deemed to be 
consent to recall all engines that we determine do not meet applicable 
emission standards or other requirements and to remedy the nonconformity 
at no expense to the owner. If you do not provide information required 
under paragraph (c) of this section within 30 days after we request it, 
you must stop producing the new or modified engines.
    (f) You may ask us to approve a change to your FEL in certain cases 
after the start of production. The changed FEL may not apply to engines 
you have already introduced into U.S. commerce, except as described in 
this paragraph (f). If we approve a changed FEL after the start of 
production, you must include the new FEL on the emission control 
information label for all engines produced after the change. You may ask 
us to approve a change to your FEL in the following cases:
    (1) You may ask to raise your FEL for your engine family at any 
time. In your request, you must show that you will still be able to meet 
the emission standards as specified in subparts B and H of this part. If 
you amend your application by submitting new test data to include a 
newly added or modified engine, as described in paragraph (b)(3) of this 
section, use the appropriate FELs with corresponding production volumes 
to calculate emission credits for the model year, as described in 
subpart H of this part. In all other circumstances, you must use the 
higher FEL for the entire engine family to calculate emission credits 
under subpart H of this part.
    (2) You may ask to lower the FEL for your engine family only if you 
have

[[Page 121]]

test data from production engines showing that emissions are below the 
proposed lower FEL. The lower FEL applies only to engines you produce 
after we approve the new FEL. Use the appropriate FELs with 
corresponding production volumes to calculate emission credits for the 
model year, as described in subpart H of this part.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40463, July 13, 2005; 
72 FR 53131, Sept. 18, 2007; 75 FR 22990, Apr. 30, 2010]



Sec. 1039.230  How do I select engine families?

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

[69 FR 39213, June 29, 2004, as amended at 72 FR 53131, Sept. 18, 2007; 
75 FR 22990, Apr. 30, 2010]



Sec. 1039.235  What testing requirements apply for certification?

    This section describes the emission testing you must perform to show 
compliance with the emission standards in Sec. 1039.101(a) and (b) or 
Sec. 1039.102(a) and (b). See Sec. 1039.205(p) regarding emission 
testing related to the NTE standards. See Sec. 1039.240, Sec. 
1039.245, and 40 CFR part 1065, subpart E, regarding service 
accumulation before emission testing.
    (a) Test your emission-data engines using the procedures and 
equipment specified in subpart F of this part.
    (b) Select an emission-data engine from each engine family for 
testing. Select the engine configuration with the highest volume of fuel 
injected per cylinder per combustion cycle at the point of maximum 
torque--unless good engineering judgment indicates that a different 
engine configuration is more likely to exceed (or have emissions nearer 
to) an applicable emission standard or FEL. If two or more engines have 
the same fueling rate at maximum torque, select the one with the highest 
fueling rate at rated speed. In making this selection, consider all 
factors expected to affect emission-control performance and compliance 
with the standards, including emission levels of all exhaust 
constituents, especially NOX and PM.
    (c) We may measure emissions from any of your emission-data engines 
or other engines from the engine family, as follows:
    (1) We may decide to do the testing at your plant or any other 
facility. If we do this, you must deliver the engine to a test facility 
we designate. The engine you provide must include appropriate manifolds, 
aftertreatment devices, electronic control units, and other emission-
related components not normally attached directly to the engine block. 
If we do the testing at your plant, you must schedule it as soon as

[[Page 122]]

possible and make available the instruments, personnel, and equipment we 
need.
    (2) If we measure emissions on one of your engines, the results of 
that testing become the official emission results for the engine. Unless 
we later invalidate these data, we may decide not to consider your data 
in determining if your engine family meets applicable requirements.
    (3) Before we test one of your engines, we may set its adjustable 
parameters to any point within the physically adjustable ranges (see 
Sec. 1039.115(e)).
    (4) Before we test one of your engines, we may calibrate it within 
normal production tolerances for anything we do not consider an 
adjustable parameter. For example, this would apply for an engine 
parameter that is subject to production variability because it is 
adjustable during production, but is not considered an adjustable 
parameter (as defined in Sec. 1039.801) because it is permanently 
sealed.
    (d) You may ask to use carryover emission data from a previous model 
year instead of doing new tests, but only if all the following are true:
    (1) The engine family from the previous model year differs from the 
current engine family only with respect to model year or other 
characteristics unrelated to emissions.
    (2) The emission-data engine from the previous model year remains 
the appropriate emission-data engine under paragraph (b) of this 
section.
    (3) The data show that the emission-data engine would meet all the 
requirements that apply to the engine family covered by the application 
for certification.
    (e) We may require you to test a second engine of the same or 
different configuration in addition to the engine tested under paragraph 
(b) of this section.
    (f) If you use an alternate test procedure under 40 CFR 1065.10 and 
later testing shows that such testing does not produce results that are 
equivalent to the procedures specified in subpart F of this part, we may 
reject data you generated using the alternate procedure.
    (g) Measure CO2 and CH4 with each low-hour 
certification test using the procedures specified in 40 CFR part 1065 in 
the 2011 and 2012 model years, respectively. Also measure N2O 
with each low-hour certification test using the procedures specified in 
40 CFR part 1065 starting in the 2013 model year for any engine family 
that depends on NOx aftertreatment to meet emission standards. Small-
volume engine manufacturers may omit measurement of N2O and 
CH4. These measurements are not required for NTE testing. Use 
the same units and modal calculations as for your other results to 
report a single weighted value for each constituent. Round the final 
values as follows:
    (1) Round CO2 to the nearest 1 g/kW-hr.
    (2) Round N2O to the nearest 0.001 g/kW-hr.
    (3) Round CH4 to the nearest 0.001g/kW-hr.

[69 FR 39213, June 29, 2004, as amended at 72 FR 53131, Sept. 18, 2007; 
74 FR 56509, Oct. 30, 2009; 75 FR 22991, Apr. 30, 2010]



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

    (a) For purposes of certification, your engine family is considered 
in compliance with the emission standards in Sec. 1039.101(a) and (b), 
Sec. 1039.102(a) and (b), Sec. 1039.104, and Sec. 1039.105 if all 
emission-data engines representing that family have test results showing 
official emission results and deteriorated emission levels at or below 
these standards. This also applies for all test points for emission-data 
engines within the family used to establish deterioration factors. Note 
that your FELs are considered to be the applicable emission standards 
with which you must comply if you participate in the ABT program in 
subpart H of this part.
    (b) Your engine family is deemed not to comply if any emission-data 
engine representing that family has test results showing an official 
emission result or a deteriorated emission level for any pollutant that 
is above an applicable emission standard. Similarly, your engine family 
is deemed not to comply if any emission-data engine representing that 
family has test results showing any emission level above

[[Page 123]]

the applicable not-to-exceed emission standard for any pollutant. This 
also applies for all test points for emission-data engines within the 
family used to establish deterioration factors.
    (c) To compare emission levels from the emission-data engine with 
the applicable emission standards, apply deterioration factors to the 
measured emission levels for each pollutant. Section 1039.245 specifies 
how to test your engine to develop deterioration factors that represent 
the deterioration expected in emissions over your engines' full useful 
life. Your deterioration factors must take into account any available 
data from in-use testing with similar engines. Small-volume engine 
manufacturers may use assigned deterioration factors that we establish. 
Apply deterioration factors as follows:
    (1) Additive deterioration factor for exhaust emissions. Except as 
specified in paragraph (c)(2) of this section, use an additive 
deterioration factor for exhaust emissions. An additive deterioration 
factor is the difference between exhaust emissions at the end of the 
useful life and exhaust emissions at the low-hour test point. In these 
cases, adjust the official emission results for each tested engine at 
the selected test point by adding the factor to the measured emissions. 
If the factor is less than zero, use zero. Additive deterioration 
factors must be specified to one more decimal place than the applicable 
standard.
    (2) Multiplicative deterioration factor for exhaust emissions. Use a 
multiplicative deterioration factor if good engineering judgment calls 
for the deterioration factor for a pollutant to be the ratio of exhaust 
emissions at the end of the useful life to exhaust emissions at the low-
hour test point. For example, if you use aftertreatment technology that 
controls emissions of a pollutant proportionally to engine-out 
emissions, it is often appropriate to use a multiplicative deterioration 
factor. Adjust the official emission results for each tested engine at 
the selected test point by multiplying the measured emissions by the 
deterioration factor. If the factor is less than one, use one. A 
multiplicative deterioration factor may not be appropriate in cases 
where testing variability is significantly greater than engine-to-engine 
variability. Multiplicative deterioration factors must be specified to 
one more significant figure than the applicable standard.
    (3) Deterioration factor for smoke. Deterioration factors for smoke 
are always additive, as described in paragraph (c)(1) of this section.
    (4) Deterioration factor for crankcase emissions. If your engine 
vents crankcase emissions to the exhaust or to the atmosphere, you must 
account for crankcase emission deterioration, using good engineering 
judgment. You may use separate deterioration factors for crankcase 
emissions of each pollutant (either multiplicative or additive) or 
include the effects in combined deterioration factors that include 
exhaust and crankcase emissions together for each pollutant.
    (d) Collect emission data using measurements to one more decimal 
place than the applicable standard. Apply the deterioration factor to 
the official emission result, as described in paragraph (c) of this 
section, then round the adjusted figure to the same number of decimal 
places as the emission standard. Compare the rounded emission levels to 
the emission standard for each emission-data engine. In the case of 
NOX+NMHC standards, apply the deterioration factor to each 
pollutant and then add the results before rounding.
    (e) For engines subject to NMHC standards, you may base compliance 
on total hydrocarbon (THC) emissions. Indicate in your application for 
certification if you are using this option. If you do, measure THC 
emissions and calculate NMHC emissions as 98 percent of THC emissions, 
as shown in the following equation:

NMHC = (0.98) x (THC).

[69 FR 39213, June 29, 2004, as amended at 70 FR 40463, July 13, 2005; 
75 FR 22991, Apr. 30, 2010]



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

    This section describes how to determine deterioration factors, 
either with an engineering analysis, with pre-existing test data, or 
with new emission measurements. Apply these deterioration factors to 
determine whether your

[[Page 124]]

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

[69 FR 39213, June 29, 2004, as amended at 72 FR 53131, Sept. 18, 2007; 
75 FR 22991, Apr. 30, 2010]



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

    (a) Within 45 days after the end of the model year, send the 
Designated Compliance Officer a report describing the following 
information about engines you produced during the model year:
    (1) Report the total number of engines you produced in each engine 
family by maximum engine power, total displacement, and the type of fuel 
system.
    (2) If you produced exempted engines under the provisions of Sec. 
1039.625, report the number of exempted engines you produced for each 
engine model and identify the buyer or shipping destination for each 
exempted engine.
    (b) Organize and maintain the following records:
    (1) A copy of all applications and any summary information you send 
us.
    (2) Any of the information we specify in Sec. 1039.205 that you 
were not required to include in your application.
    (3) A detailed history of each emission-data engine. For each 
engine, describe all of the following:
    (i) The emission-data engine's construction, including its origin 
and buildup, steps you took to ensure that it represents production 
engines, any

[[Page 125]]

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

[69 FR 39213, June 29, 2004, as amended at 75 FR 22991, Apr. 30, 2010]



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

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

[69 FR 39213, June 29, 2004, as amended at 72 FR 53132, Sept. 18, 2007; 
75 FR 22991, Apr. 30, 2010]

Subpart D [Reserved]



                        Subpart E_In-Use Testing



Sec. 1039.401  General provisions.

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

[[Page 126]]



                        Subpart F_Test Procedures



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

    (a) Use the equipment and procedures for compression-ignition 
engines in 40 CFR part 1065 to determine whether engines meet the duty-
cycle emission standards in subpart B of this part. Measure the 
emissions of all the exhaust constituents subject to emissions standards 
as specified in 40 CFR part 1065. Measure CO2, 
N2O, and CH4 as described in Sec. 1039.235. Use 
the applicable duty cycles specified in Sec. Sec. 1039.505 and 
1039.510.
    (b) Section 1039.515 describes the supplemental procedures for 
evaluating whether engines meet the not-to-exceed emission standards in 
subpart B of this part.
    (c) Measure smoke using the procedures in 40 CFR part 86, subpart I, 
for evaluating whether engines meet the smoke standards in Sec. 
1039.105, except that you may test two-cylinder engines with an exhaust 
muffler like those installed on in-use engines.
    (d) Use the fuels specified in Sec. 1039.104(e) and 40 CFR part 
1065 to perform valid tests.
    (1) For service accumulation, use the test fuel or any commercially 
available fuel that is representative of the fuel that in-use engines 
will use.
    (2) For diesel-fueled engines, use the appropriate diesel fuel 
specified in 40 CFR part 1065 for emission testing. Unless we specify 
otherwise, the appropriate diesel test fuel is the ultra low-sulfur 
diesel fuel. If we allow you to use a test fuel with higher sulfur 
levels, identify the test fuel in your application for certification and 
ensure that the emission control information label is consistent with 
your selection of the test fuel (see Sec. 1039.135(c)(9)). For example, 
do not test with ultra low-sulfur diesel fuel if you intend to label 
your engines to allow use of diesel fuel with sulfur concentrations up 
to 500 ppm.
    (e) You may use special or alternate procedures to the extent we 
allow them under 40 CFR 1065.10.
    (f) This subpart is addressed to you as a manufacturer, but it 
applies equally to anyone who does testing for you, and to us when we 
perform testing to determine if your engines meet emission standards.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40463, July 13, 2005; 
72 FR 53132, Sept. 18, 2007; 74 FR 56509, Oct. 30, 2009]



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

ramped-modal testing?

    This section describes how to test engines under steady-state 
conditions. In some cases, we allow you to choose the appropriate 
steady-state duty cycle for an engine. In these cases, you must use the 
duty cycle you select in your application for certification for all 
testing you perform for that engine family. If we test your engines to 
confirm that they meet emission standards, we will use the duty cycles 
you select for your own testing. We may also perform other testing as 
allowed by the Clean Air Act.
    (a) You may perform steady-state testing with either discrete-mode 
or ramped-modal cycles, as follows:
    (1) For discrete-mode testing, sample emissions separately for each 
mode, then calculate an average emission level for the whole cycle using 
the weighting factors specified for each mode. Calculate cycle 
statistics and compare with the established criteria as specified in 40 
CFR 1065.514 to confirm that the test is valid. Operate the engine and 
sampling system as follows:
    (i) Engines with NOX aftertreatment. For engines that depend on 
aftertreatment to meet the NOX emission standard, operate the 
engine for 5-6 minutes, then sample emissions for 1-3 minutes in each 
mode. You may extend the sampling time to improve measurement accuracy 
of PM emissions, using good engineering judgment. If you have a longer 
sampling time for PM emissions, calculate and validate cycle statistics 
separately for the gaseous and PM sampling periods.
    (ii) Engines without NOX aftertreatment. For other 
engines, operate the engine for at least 5 minutes, then sample 
emissions for at least 1 minute in each mode.
    (2) For ramped-modal testing, start sampling at the beginning of the 
first mode and continue sampling until the

[[Page 127]]

end of the last mode. Calculate emissions and cycle statistics the same 
as for transient testing.
    (b) Measure emissions by testing the engine on a dynamometer with 
one of the following duty cycles to determine whether it meets the 
steady-state emission standards in Sec. 1039.101(b):
    (1) Use the 5-mode duty cycle or the corresponding ramped-modal 
cycle described in Appendix II of this part for constant-speed engines. 
Note that these cycles do not apply to all engines used in constant-
speed applications, as described in Sec. 1039.801.
    (2) Use the 6-mode duty cycle or the corresponding ramped-modal 
cycle described in Appendix III of this part for variable-speed engines 
below 19 kW. You may instead use the 8-mode duty cycle or the 
corresponding ramped-modal cycle described in Appendix IV of this part 
if some engines from your engine family will be used in applications 
that do not involve governing to maintain engine operation around rated 
speed.
    (3) Use the 8-mode duty cycle or the corresponding ramped-modal 
cycle described in Appendix IV of this part for variable-speed engines 
at or above 19 kW.
    (c) During idle mode, operate the engine at its warm idle speed as 
described in 40 CFR part 1065.
    (d) For constant-speed engines whose design prevents full-load 
operation for extended periods, you may ask for approval under 40 CFR 
1065.10(c) to replace full-load operation with the maximum load for 
which the engine is designed to operate for extended periods.
    (e) See 40 CFR part 1065 for detailed specifications of tolerances 
and calculations.
    (f) For those cases where transient testing is not necessary, 
perform the steady-state test according to this section after an 
appropriate warm-up period, consistent with 40 CFR part 1065, subpart F.
    (g) To allow non-motoring dynamometers on cycles with idle, you may 
omit additional points from the duty-cycle regression as follows:
    (1) For variable-speed engines with low-speed governors, you may 
omit speed, torque, and power points from the duty-cycle regression 
statistics if the following are met:
    (i) The engine operator demand is at its minimum.
    (ii) The dynamometer demand is at its minimum.
    (iii) It is an idle point fnref = 0 % (idle) and 
Tref = 0 % (idle).
    (iv) Tref < T <= 5 % [middot] Tmax mapped.
    (2) For variable-speed engines without low-speed governors, you may 
omit torque and power points from the duty-cycle regression statistics 
if the following are met:
    (i) The dynamometer demand is at its minimum.
    (ii) It is an idle point fnref = 0 % (idle) and 
Tref = 0 % (idle).
    (iii) fnref - (2 % [middot] fntest) < 
fn < fnref + (2 % [middot] fntest).
    (iv) Tref < T <= 5 % [middot] Tmax mapped.

[69 FR 39213, June 29, 2004, as amended at 73 FR 37241, June 30, 2008]



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

    (a) Measure emissions by testing the engine on a dynamometer with 
one of the following transient duty cycles to determine whether it meets 
the transient emission standards in Sec. 1039.101(a):
    (1) For variable-speed engines, use the transient duty cycle 
described in Appendix VI of this part.
    (2) [Reserved]
    (b) The transient test sequence consists of an initial run through 
the transient duty cycle from a cold start, 20 minutes with no engine 
operation, then a final run through the same transient duty cycle. Start 
sampling emissions immediately after you start the engine. Calculate the 
official transient emission result from the following equation:
[GRAPHIC] [TIFF OMITTED] TR30AP10.002


[[Page 128]]


    (c) Calculate cycle statistics and compare with the established 
criteria as specified in 40 CFR 1065.514 to confirm that the test is 
valid.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40463, July 13, 2005; 
75 FR 22991, Apr. 30, 2010]



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

    (a) General provisions. The provisions in 40 CFR 86.1370-2007 apply 
for determining whether an engine meets the not-to-exceed emission 
standards in Sec. 1039.101(e). Interpret references to vehicles and 
vehicle operation to mean equipment and equipment operation.
    (b) Special PM zone. For engines certified to a PM standard or FEL 
above 0.07 g/kW-hr, a modified NTE control area applies for PM emissions 
only. The speeds and loads to be excluded are determined based on speeds 
B and C, determined according to the provisions of 40 CFR 86.1360-
2007(c). One of the following provisions applies:
    (1) If the C speed is below 2400 rpm, exclude the speed and load 
points to the right of or below the line formed by connecting the 
following two points on a plot of speed-vs.-power:
    (i) 30% of maximum power at the B speed; however, use the power 
value corresponding to the engine operation at 30% of maximum torque at 
the B speed if this is greater than 30% of maximum power at the B speed.
    (ii) 70% of maximum power at 100% speed.
    (2) If the C speed is at or above 2400 rpm, exclude the speed and 
load points to the right of the line formed by connecting the two points 
in paragraphs (b)(2)(i) and (ii) of this section (the 30% and 50% 
torque/power points) and below the line formed by connecting the two 
points in paragraphs (b)(2)(ii) and (iii) of this section (the 50% and 
70% torque/power points). The 30%, 50%, and 70% torque/power points are 
defined as follows:
    (i) 30% of maximum power at the B speed; however, use the power 
value corresponding to the engine operation at 30% of maximum torque at 
the B speed if this is greater than 30% of maximum power at the B speed.
    (ii) 50% of maximum power at 2400 rpm.
    (iii) 70% of maximum power at 100% speed.



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

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



Sec. 1039.525  How do I adjust emission levels to account for infrequently

regenerating aftertreatment devices?

    This section describes how to adjust emission results from engines 
using aftertreatment technology with infrequent regeneration events. For 
this section, ``regeneration'' means an intended event during which 
emission levels change while the system restores aftertreatment 
performance. For example, exhaust gas temperatures may increase 
temporarily to remove sulfur from adsorbers or to oxidize accumulated 
particulate matter in a trap. For this section, ``infrequent'' refers to 
regeneration events that are expected to occur on average less than once 
over the applicable transient duty cycle or ramped-modal cycle, or on 
average less than once per typical mode in a discrete-mode test.
    (a) Developing adjustment factors. Develop an upward adjustment 
factor and a downward adjustment factor for each pollutant based on 
measured emission data and observed regeneration frequency. Adjustment 
factors should generally apply to an entire engine family, but you may 
develop separate adjustment factors for different engine configurations 
within an engine family. If you use adjustment factors for 
certification, you must identify the frequency factor, F, from paragraph 
(b) of this section in your application for certification and use the 
adjustment factors in all testing for that engine family. You may use 
carryover or carry-across data to establish adjustment factors for an 
engine family, as described in Sec. 1039.235(d), consistent with good 
engineering judgment. All adjustment factors for regeneration are 
additive. Determine adjustment factors separately for different test 
segments.

[[Page 129]]

For example, determine separate adjustment factors for hot-start and 
cold-start test segments and for different modes of a discrete-mode 
steady-state test. You may use either of the following different 
approaches for engines that use aftertreatment with infrequent 
regeneration events:
    (1) You may disregard this section if regeneration does not 
significantly affect emission levels for an engine family (or 
configuration) or if it is not practical to identify when regeneration 
occurs. If you do not use adjustment factors under this section, your 
engines must meet emission standards for all testing, without regard to 
regeneration.
    (2) If your engines use aftertreatment technology with extremely 
infrequent regeneration and you are unable to apply the provisions of 
this section, you may ask us to approve an alternate methodology to 
account for regeneration events.
    (b) Calculating average adjustment factors. Calculate the average 
adjustment factor (EFA) based on the following equation:

EFA = (F)(EFH) + (1-F)(EFL)

Where:

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

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

UAF = EFA - EFL

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

DAF = EFH - EFA

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

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



                 Subpart G_Special Compliance Provisions



Sec. 1039.601  What compliance provisions apply to these engines?

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



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

    (a) General provisions. If you are an engine manufacturer, this 
section allows you to introduce new nonroad engines into commerce if 
they are already certified to the requirements that apply to 
compression-ignition engines under 40 CFR parts 85 and 86 for the 
appropriate model year. If you comply with all the provisions of this 
section, we consider the certificate issued under 40 CFR part 86 for 
each engine to also be a valid certificate of conformity under this part 
1039 for its model year, without a separate application for 
certification under the requirements of this part 1039. See Sec. 
1039.610 for similar provisions that apply to engines certified to 
chassis-based standards for motor vehicles.
    (b) Equipment-manufacturer provisions. If you are not an engine 
manufacturer, you may produce nonroad equipment using motor-vehicle 
engines under this section as long as you meet all the requirements and 
conditions specified in paragraph (d) of this section. You must also add 
the fuel-inlet label we specify in Sec. 1039.135(e). If you modify the 
motor-vehicle engine in any of the

[[Page 130]]

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

[[Page 131]]

    (7) You must make sure that nonroad equipment produced under this 
section will have the fueling label we specify in Sec. 
1039.135(c)(9)(i).
    (8) Send the Designated Compliance Officer a signed letter by the 
end of each calendar year (or less often if we tell you) with all the 
following information:
    (i) Identify your full corporate name, address, and telephone 
number.
    (ii) List the engine or equipment models you expect to produce under 
this exemption in the coming year and describe your basis for meeting 
the sales restrictions of paragraph (d)(3) of this section.
    (iii) State: ``We produce each listed [engine or equipment] model 
for nonroad application without making any changes that could increase 
its certified emission levels, as described in 40 CFR 1039.605.''.
    (e) Failure to comply. If your engines do not meet the criteria 
listed in paragraph (d) of this section, they will be subject to the 
standards, requirements, and prohibitions of this part 1039 and the 
certificate issued under 40 CFR part 86 will not be deemed to also be a 
certificate issued under this part 1039. Introducing these engines into 
commerce without a valid exemption or certificate of conformity under 
this part violates the prohibitions in 40 CFR 1068.101(a)(1).
    (f) Data submission. We may require you to send us emission test 
data on any applicable nonroad duty cycles.
    (g) Participation in averaging, banking and trading. Engines adapted 
for nonroad use under this section may not generate or use emission 
credits under this part 1039. These engines may generate credits under 
the ABT provisions in 40 CFR part 86. These engines must use emission 
credits under 40 CFR part 86 if they are certified to an FEL that 
exceeds an applicable standard under 40 CFR part 86.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40463, July 13, 2005; 
72 FR 53132, Sept. 18, 2007; 75 FR 22992, Apr. 30, 2010]



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

    (a) General provisions. If you are a motor-vehicle manufacturer, 
this section allows you to introduce new nonroad engines or equipment 
into commerce if the vehicle is already certified to the requirements 
that apply under 40 CFR parts 85 and 86 for the appropriate model year. 
If you comply with all of the provisions of this section, we consider 
the certificate issued under 40 CFR part 86 for each motor vehicle to 
also be a valid certificate of conformity for the engine under this part 
1039 for its model year, without a separate application for 
certification under the requirements of this part 1039. See Sec. 
1039.605 for similar provisions that apply to motor-vehicle engines 
produced for nonroad equipment.
    (b) Equipment-manufacturer provisions. If you are not a motor-
vehicle manufacturer, you may produce nonroad equipment from motor 
vehicles under this section as long as you meet all the requirements and 
conditions specified in paragraph (d) of this section. You must also add 
the fuel-inlet label we specify in Sec. 1039.135(e). If you modify the 
motor vehicle or its engine in any of the ways described in paragraph 
(d)(2) of this section, we will consider you a manufacturer of a new 
nonroad engine. Such modifications prevent you from using the provisions 
of this section.
    (c) Liability. Engines, vehicles, and equipment for which you meet 
the requirements of this section are exempt from all the requirements 
and prohibitions of this part, except for those specified in this 
section. Engines exempted under this section must meet all the 
applicable requirements from 40 CFR parts 85 and 86. This applies to 
engine manufacturers, equipment manufacturers, and all other persons as 
if the nonroad equipment were motor vehicles. The prohibited acts of 40 
CFR 1068.101(a)(1) apply to these new pieces of equipment; however, we 
consider the certificate issued under 40 CFR part 86 for each motor 
vehicle to also be a valid certificate of conformity for the engine 
under this part 1039 for its model year. If we make a determination that 
these engines, vehicles, or equipment do not conform to the regulations 
during their useful life, we may require you to recall them under 40 CFR 
part 86 or 40 CFR 1068.505.

[[Page 132]]

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

[[Page 133]]

    (f) Data submission. We may require you to send us emission test 
data on any applicable nonroad duty cycles.
    (g) Participation in averaging, banking and trading. Vehicles 
adapted for nonroad use under this section may not generate or use 
emission credits under this part 1039. These vehicles may generate 
credits under the ABT provisions in 40 CFR part 86. These vehicles must 
be included in the calculation of the applicable fleet average in 40 CFR 
part 86.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40463, July 13, 2005; 
72 FR 53132, Sept. 18, 2007; 75 FR 22992, Apr. 30, 2010]



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

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



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

    The provisions of this section apply for new engines built on or 
after January 1, 2006.
    (a) Equipment manufacturers may use uncertified engines if the 
vehicles or equipment in which they are installed will be used solely 
for competition.
    (b) The definition of nonroad engine in 40 CFR 1068.30 excludes 
engines used solely for competition. These engines are not required to 
comply with this part 1039 or 40 CFR part 89, but 40 CFR 1068.101 
prohibits the use of competition engines for noncompetition purposes.
    (c) We consider a vehicle or piece of equipment to be one that will 
be used solely for competition if it has features that are not easily 
removed that would make its use other than in competition unsafe, 
impractical, or highly unlikely.
    (d) As an engine manufacturer, your engine is exempt without our 
prior approval if you have a written request for an exempted engine from 
the equipment manufacturer showing the basis for believing that the 
equipment will be used solely for competition. You must permanently 
label engines exempted under this section to clearly indicate that they 
are to be used solely for competition. Failure to properly label an 
engine will void the exemption.
    (e) We may discontinue an exemption under this section if we find 
that engines are not used solely for competition.



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

    The provisions of this section allow equipment manufacturers to 
produce

[[Page 134]]

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

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

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

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

    (b) Allowances. You may choose one of the following options for each 
power category to produce equipment with exempted engines under this 
section, except as allowed under Sec. 1039.627:
    (1) Percent-of-production allowances. You may produce a certain 
number of units with exempted engines calculated using a percentage of 
your total sales within a power category relative to your total U.S.-
directed production volume. The sum of these percentages within a power 
category during the seven-year period specified in paragraph (a) of this 
section may not exceed 80 percent, except as allowed under paragraph 
(b)(2) or (m) of this section.
    (2) Small-volume allowances. You may determine an alternate 
allowance for a specific number of exempted engines under this section 
using one of the following approaches for your U.S.-directed production 
volumes:
    (i) You may produce up to 700 units with exempted engines within a 
power category during the seven-year period specified in paragraph (a) 
of this section, with no more than 200 units in any single year within a 
power category, except as provided in paragraph (m) of this section. 
Engines within a power category that are exempted under this section 
must be from a single engine family within a given year.
    (ii) For engines below 130 kW, you may produce up to 525 units with 
exempted engines within a power category during the seven-year period 
specified in paragraph (a) of this section, with no more than 150 units 
in any single year within a power category, except as provided in 
paragraph (m) of this section. For engines at or above 130 kW, you may 
produce up to 350 units with exempted engines within a power category 
during the seven-year

[[Page 135]]

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.
    (iii) In each power category at or above 56 kW, you may apply the 
provisions of paragraph (b)(2)(i) of this section in the first two model 
years for which Tier 4 standards apply, regardless of the number of 
engine families you use in your equipment, provided you exceed the 
single engine family restriction of that paragraph primarily due to 
production of equipment intended specifically to travel on snow and to 
commonly operate at more than 9,000 feet above sea level. After the 
first two Tier 4 model years in a power category, you may continue to 
apply the provisions of paragraph (b)(2)(i) of this section, subject to 
the single engine family restriction.
    (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 40 CFR 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 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.

[[Page 136]]



         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 specified in this 
paragraph (e). Note that we consider engines to be meeting emission 
standards even if they are certified with a family emission limit that 
is higher than the emission standard that would otherwise apply.
    (1) If you are using the provisions of paragraph (d)(4) of this 
section, engines must meet the applicable Tier 1 or Tier 2 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 56 kW and at or below 
560 kW must meet the appropriate Tier 3 standards described in 40 CFR 
89.112. Engines below 56 kW and engines above 560 kW must meet the 
appropriate Tier 2 standards described in 40 CFR 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) An e-mail address and phone number to contact for further 
information, or a Web site that includes this contact 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 you use the provisions of this section, send the 
Designated Compliance Officer a written notice of your intent, 
including:
    (i) Your company's name and address, and your parent company's name 
and address, if applicable.
    (ii) The name, phone number and e-mail address of a person 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 each company you expect to produce 
engines for the equipment you manufacture 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 a written report by March 31 of the 
following year. Identify the following things in your report:
    (i) The total count of units you sold in the preceding year for each 
power category, based on actual U.S.-directed production information.

[[Page 137]]

    (ii) 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.
    (iii) The manufacturer of the engine installed in the equipment you 
produce under this section if this is different than you specified under 
paragraph (g)(1)(iv) 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 or 
Sec. 1039.135, as applicable, with the following exceptions:
    (1) Add the following statement instead of the compliance statement 
in 40 CFR 89.110(b)(10) or Sec. 1039.135(c)(12), as applicable:


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.

    (2) You may omit the family emission limits if they are below the 
emission standards.
    (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:

[[Page 138]]

    (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 a written request as soon as possible 
before you are in violation. In your request, include the following 
information:
    (i) Describe your process for designing equipment.
    (ii) Describe how you normally work cooperatively or concurrently 
with your engine supplier to design products.
    (iii) Describe the engineering or technical problems causing you to 
request the exemption and explain why you have not been able to solve 
them. Describe the extreme and unusual circumstances that led to these 
problems and explain how they were unavoidable.
    (iv) Describe any information or products you received from your 
engine supplier related to equipment design--such as written 
specifications, performance data, or prototype engines--and when you 
received it.
    (v) Compare the design processes of the equipment model for which 
you need additional exemptions and that for other models for which you 
do not need additional exemptions. Explain the technical differences 
that justify your request.
    (vi) Describe your efforts to find and use other compliant engines, 
or otherwise explain why none is available.
    (vii) Describe the steps you have taken to minimize the scope of 
your request.
    (viii) Include other relevant information. You must give us other 
relevant information if we ask for it.
    (ix) Estimate the increased percent of production you need for each 
equipment model covered by your request, as described in paragraph 
(m)(3) of this section. Estimate the increased number of allowances you 
need for each equipment model covered by your request, as described in 
paragraph (m)(4) of this section.
    (3) We may approve your request to increase the allowances under 
paragraph (b)(1) of this section, subject to the following limitations:
    (i) The additional allowances will not exceed 70 percent for each 
power category.
    (ii) You must use up the allowances under paragraph (b)(1) of this 
section before using any additional allowance under this paragraph (m).
    (iii) Any allowances we approve under this paragraph (m)(3) expire 
24 months after the provisions of this section start for a given power 
category, as described in paragraph (a) of this section. You may use 
these allowances only for the specific equipment models covered by your 
request.
    (4) We may approve your request to increase the allowances for the 
19-56 kW power category under paragraph (b)(2) of this section, subject 
to the following limitations:
    (i) You are eligible for additional allowances under this paragraph 
(m)(4) only if you are a small equipment manufacturer and you do not use 
the provisions of paragraph (m)(3) of this section to obtain additional 
allowances for the 19-56 kW power category.
    (ii) You must use up all the available allowances for the 19-56 kW 
power category under paragraph (b)(2) of this section in a given year 
before using any additional allowances under this paragraph (m)(4).
    (iii) Base your request only on equipment you produce with engines 
at or above 19 kW and below 37 kW. You may use any additional allowances 
only for equipment you produce with engines at or above 19 kW and below 
37 kW.
    (iv) The total allowances under either paragraph (b)(2)(i) or (ii) 
of this section for the 19-56 kW power category will not exceed 1,100 
units.
    (v) Any allowances we approve under this paragraph (m)(4) expire 36 
months after the provisions of this section start for this power 
category, as described in paragraph (a) of this section. These 
additional allowances are not subject to the annual limits specified

[[Page 139]]

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; 
72 FR 53133, Sept. 18, 2007; 73 FR 59191, Oct. 8, 2008; 75 FR 68461, 
Nov. 8, 2010]



Sec. 1039.626  What special provisions apply to equipment imported under 

the equipment-manufacturer flexibility program?

    This section describes requirements that apply to equipment 
manufacturers using the provisions of Sec. 1039.625 for equipment 
produced outside the United States. Note that Sec. 1039.625 limits 
these provisions to equipment manufacturers that install some engines 
and have primary responsibility for designing and manufacturing 
equipment. Companies that import equipment into the United States 
without meeting these criteria are not eligible for these allowances. 
Such importers may import equipment with exempted engines only as 
described in paragraph (b) of this section.
    (a) As a foreign equipment manufacturer, you or someone else may 
import equipment with exempted engines under this section if you comply 
with the provisions in Sec. 1039.625 and commit to the following:
    (1) Give any EPA inspector or auditor complete and immediate access 
to inspect and audit, as follows:
    (i) Inspections and audits may be announced or unannounced.
    (ii) Inspections and audits may be by EPA employees or EPA 
contractors.
    (iii) You must provide access to any location where--
    (A) Any nonroad engine, equipment, or vehicle is produced or stored.
    (B) Documents related to manufacturer operations are kept.
    (C) Equipment, engines, or vehicles are tested or stored for 
testing.
    (iv) You must provide any documents requested by an EPA inspector or 
auditor that are related to matters covered by the inspections or audit.
    (v) EPA inspections and audits may include review and copying of any 
documents related to demonstrating compliance with the exemptions in 
Sec. 1039.625.
    (vi) EPA inspections and audits may include inspection and 
evaluation of complete or incomplete equipment, engines, or vehicles, 
and interviewing employees.
    (vii) You must make any of your employees available for interview by 
the EPA inspector or auditor, on request, within a reasonable time 
period.
    (viii) You must provide English language translations of any 
documents to an EPA inspector or auditor, on request, within 10 working 
days.
    (ix) You must provide English-language interpreters to accompany EPA 
inspectors and auditors, on request.
    (2) Name an agent for service located in the United States. Service 
on this agent constitutes service on you or any of your officers or 
employees for any action by EPA or otherwise by the United States 
related to the requirements of this part.
    (3) The forum for any civil or criminal enforcement action related 
to the provisions of this section for violations of the Clean Air Act or 
regulations promulgated thereunder shall be governed by the Clean Air 
Act.
    (4) The substantive and procedural laws of the United States shall 
apply to any civil or criminal enforcement action against you or any of 
your officers or employees related to the provisions of this section.
    (5) Provide the notification required by Sec. 1039.625(g). Include 
in the notice of intent in Sec. 1039.625(g)(1) a commitment to comply 
with the requirements and

[[Page 140]]

obligations of Sec. 1039.625 and this section. This commitment must be 
signed by the owner or president.
    (6) You, your agents, officers, and employees must not seek to 
detain or to impose civil or criminal remedies against EPA inspectors or 
auditors, whether EPA employees or EPA contractors, for actions 
performed within the scope of EPA employment related to the provisions 
of this section.
    (7) By submitting notification of your intent to use the provisions 
of Sec. 1039.625, producing and exporting for resale to the United 
States nonroad equipment under this section, or taking other actions to 
comply with the requirements of this part, you, your agents, officers, 
and employees, without exception, become subject to the full operation 
of the administrative and judicial enforcement powers and provisions of 
the United States as described in 28 U.S.C. 1605(a)(2), without 
limitation based on sovereign immunity, for conduct that violates the 
requirements applicable to you under this part 1039--including such 
conduct that violates 18 U.S.C. 1001, 42 U.S.C. 7413(c)(2), or other 
applicable provisions of the Clean Air Act'with respect to actions 
instituted against you and your agents, officers, and employees in any 
court or other tribunal in the United States.
    (8) Any report or other document you submit to us must be in the 
English language, or include a complete translation in English.
    (9) You must post a bond to cover any potential enforcement actions 
under the Clean Air Act before you or anyone else imports your equipment 
under this section, as follows:
    (i) The value of the bond is based on the per-engine bond values 
shown in Table 1 of this section and on the highest number of engines in 
each power category you produce in any single calendar year under the 
provisions of Sec. 1039.625. For example, if you have projected U.S.-
directed production volumes of 100 exempt engines in the 19-56 kW power 
category and 300 exempt engines in the 56-130 kW power category in 2013, 
the appropriate bond amount is $180,000. If your estimated or actual 
engine imports increase beyond the level appropriate for your current 
bond payment, you must post additional bond to reflect the increased 
sales within 90 days after you change your estimate or determine the 
actual sales. You may not decrease your bond.
    (ii) You may meet the bond requirements of this section with any of 
the following methods:
    (A) Get a bond from a third-party surety that is cited in the U.S. 
Department of Treasury Circular 570, ``Companies Holding Certificates of 
Authority as Acceptable Sureties on Federal Bonds and as Acceptable 
Reinsuring Companies.'' Maintain this bond for five years after the 
applicable allowance period expires, or five years after you use up all 
the available allowances under Sec. 1039.625, whichever comes first.
    (B) Get us to approve a waiver from the bonding requirement if you 
can show that you meet the asset thresholds described in 40 CFR 
1054.690.
    (iii) If you forfeit some or all of your bond in an enforcement 
action, you must post any appropriate bond for continuing importation 
within 90 days after you forfeit the bond amount.

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

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

[[Page 141]]

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

[69 FR 39213, June 29, 2004, as amended at 73 FR 59192, Oct. 8, 2008]



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

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

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

    (b) Using engine offsets. (1) You may use engine offsets generated 
under paragraph (a) of this section to generate additional allowances 
under Sec. 1039.625, as follows:
    (i) For each engine offset, you may increase the number of available 
allowances under Sec. 1039.625(b) for that power category by one engine 
for the years indicated.
    (ii) For engines in 56-560 kW power categories, you may transfer 
engine offsets across power categories within this power range. 
Calculate the number of additional allowances by scaling the number of 
generated engine offsets according to the ratio of engine power for

[[Page 142]]

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

[69 FR 39213, June 29, 2004, as amended at 75 FR 22992, Apr. 30, 2010]



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

    If you qualify for the economic hardship provisions specified in 40 
CFR 1068.255, we may approve your hardship application subject to the 
following additional conditions:
    (a) You must show that you have used up the allowances to produce 
equipment with exempted engines under Sec. 1039.625.
    (b) You may produce equipment under this section for up to 12 months 
total (or 24 months total for small-volume manufacturers).



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

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



Sec. 1039.640  What special provisions apply to branded engines?

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

[[Page 143]]



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

refrigeration units?

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

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

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

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

    (c) Engines certified under this section must be certified in a 
separate engine family that contains only TRU engines.
    (d) You must do the following for each engine certified under this 
section:
    (1) State on the emission control information label: ``THIS ENGINE 
IS CERTIFIED TO OPERATE ONLY IN TRANSPORTATION REFRIGERATION UNITS. 
INSTALLING OR USING THIS ENGINE IN ANY OTHER APPLICATION MAY BE A 
VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.''.
    (2) State in the emission-related installation instructions all 
steps necessary to ensure that the engine will operate only in the modes 
covered by the test cycle described in this section.
    (3) Keep records to document the destinations and quantities of 
engines produced under this section.
    (e) All engines certified under this section must comply with NTE 
standards, as described in Sec. 1039.101 or

[[Page 144]]

Sec. 1039.102 for the applicable model year, except that the NTE 
standards are not limited with respect to operating speeds and loads. In 
your application for certification, certify that all the engines in the 
engine family comply with the not-to-exceed emission standards for all 
normal operation and use. The deficiency provisions of Sec. 1039.104(d) 
do not apply to these engines. This paragraph (e) applies whether or not 
the engine would otherwise be subject to NTE standards.
    (f) An engine is not considered to be used in a TRU if any of the 
following is true:
    (1) The engine is installed in any equipment other than 
refrigeration units for railcars, truck trailers, or other freight 
vehicles.
    (2) The engine operates in any mode not covered by the test cycle 
described in this section, except as follows:
    (i) The engine may operate briefly at idle. Note, however, that TRU 
engines must meet NTE emission standards under any type of operation, 
including idle, as described in paragraph (e) of this section.
    (ii) The engine may have a minimal amount of transitional operation 
between two allowable modes. As an example, a thirty-second transition 
period would clearly not be considered minimal.
    (iii) The engine as installed may experience up to a 2-percent 
decrease in load at a given setpoint over any 10-minute period, and up 
to a 15-percent decrease in load at a given setpoint over any 60-minute 
period.
    (3) The engine is sold in a configuration that allows the engine to 
operate in any mode not covered by the test cycle described in this 
section. For example, this section does not apply to an engine sold 
without a governor limiting operation only to those modes covered by the 
test cycle described in this section.
    (4) The engine is subject to Tier 3 or earlier standards, or phase-
out Tier 4 standards.

[69 FR 39213, June 29, 2004, as amended at 73 FR 37241, June 30, 2008]



Sec. 1039.650  [Reserved]



Sec. 1039.655  What special provisions apply to engines sold in Guam, 

American Samoa, or the Commonwealth of the Northern Mariana Islands?

    (a) The prohibitions in Sec. 1068.101(a)(1) do not apply to an 
engine if the following conditions are met:
    (1) The engine is intended for use and will be used in Guam, 
American Samoa, or the Commonwealth of the Northern Mariana Islands.
    (2) The engine meets the latest applicable emission standards in 40 
CFR 89.112.
    (3) You meet all the requirements of 40 CFR 1068.265.
    (b) If you introduce an engine into commerce in the United States 
under this section, you must meet the labeling requirements in 40 CFR 
89.110, but add the following statement instead of the compliance 
statement in 40 CFR 89.110(b)(10):

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

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

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



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

    Under Sec. 1039.801, certain engines are considered to be new 
engines when they are imported into the United States, even if they have 
previously been used outside the country. Independent Commercial 
Importers may use the provisions of 40 CFR part 89,

[[Page 145]]

subpart G, and 40 CFR 89.906(b) to receive a certificate of conformity 
for engines meeting all the requirements of this part 1039.



       Subpart H_Averaging, Banking, and Trading for Certification



Sec. 1039.701  General provisions.

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



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

    The provisions of this section apply separately for calculating 
emission credits for NOX, NOX+NMHC, or PM.
    (a) [Reserved]
    (b) For each participating family, calculate positive or negative 
emission credits relative to the otherwise applicable emission standard. 
Calculate positive emission credits for a family that has an FEL below 
the standard. Calculate negative emission credits for a family that has 
an FEL above the standard. Sum your positive and negative credits for 
the model year before rounding. Round the sum of emission credits to the 
nearest kilogram (kg), using consistent units throughout the following 
equation:

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

Where:

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

[[Page 146]]

UL = the useful life for the given engine family, in hours.

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

[69 FR 39213, June 29, 2004, as amended at 71 FR 39185, July 11, 2006; 
72 FR 53133, Sept. 18, 2007; 75 FR 22992, Apr. 30, 2010]



Sec. 1039.710  How do I average emission credits?

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



Sec. 1039.715  How do I bank emission credits?

    (a) Banking is the retention of emission credits by the manufacturer 
generating the emission credits for use in future model years for 
averaging or trading.
    (b) You may designate any emission credits you plan to bank in the 
reports you submit under Sec. 1039.730 as reserved credits. During the 
model year and before the due date for the final report, you may 
designate your reserved emission credits for averaging or trading.
    (c) Reserved credits become actual emission credits when you submit 
your final report. However, we may revoke these emission credits if we 
are unable to verify them after reviewing your reports or auditing your 
records.

[75 FR 22992, Apr. 30, 2010]



Sec. 1039.720  How do I trade emission credits?

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

[[Page 147]]

a negative balance of emission credits. See Sec. 1039.745.

[69 FR 39213, June 29, 2004, as amended at 75 FR 22992, Apr. 30, 2010]



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

    (a) You must declare in your application for certification your 
intent to use the provisions of this subpart for each engine family that 
will be certified using the ABT program. You must also declare the FELs 
you select for the engine family for each pollutant for which you are 
using the ABT program. Your FELs must comply with the specifications of 
subpart B of this part, including the FEL caps. FELs must be expressed 
to the same number of decimal places as the applicable standards.
    (b) Include the following in your application for certification:
    (1) A statement that, to the best of your belief, you will not have 
a negative balance of emission credits for any averaging set when all 
emission credits are calculated at the end of the year.
    (2) Detailed calculations of projected emission credits (positive or 
negative) based on projected production volumes. We may require you to 
include similar calculations from your other engine families to 
demonstrate that you will be able to avoid a negative credit balance for 
the model year. If you project negative emission credits for a family, 
state the source of positive emission credits you expect to use to 
offset the negative emission credits.

[69 FR 39213, June 29, 2004, as amended at 75 FR 22992, Apr. 30, 2010]



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

    (a) If any of your engine families are certified using the ABT 
provisions of this subpart, you must send an end-of-year report within 
90 days after the end of the model year and a final report within 270 
days after the end of the model year. We may waive the requirement to 
send the end-of year report, as long as you send the final report on 
time.
    (b) Your end-of-year and final reports must include the following 
information for each engine family participating in the ABT program:
    (1) Engine-family designation.
    (2) The emission standards that would otherwise apply to the engine 
family.
    (3) The FEL for each pollutant. If you change the FEL after the 
start of production, identify the date that you started using the new 
FEL and/or give the engine identification number for the first engine 
covered by the new FEL. In this case, identify each applicable FEL and 
calculate the positive or negative emission credits as specified in 
Sec. 1039.225.
    (4) The projected and actual U.S.-directed production volumes for 
the model year. If you changed an FEL during the model year, identify 
the actual production volume associated with each FEL.
    (5) Maximum engine power for each engine configuration, and the 
average engine power weighted by U.S.-directed production volumes for 
the engine family.
    (6) Useful life.
    (7) Calculated positive or negative emission credits for the whole 
engine family. Identify any emission credits that you traded, as 
described in paragraph (d)(1) of this section.
    (c) Your end-of-year and final reports must include the following 
additional information:
    (1) Show that your net balance of emission credits from all your 
participating engine families in each averaging set in the applicable 
model year is not negative.
    (2) State whether you will reserve any emission credits for banking.
    (3) State that the report's contents are accurate.
    (d) If you trade emission credits, you must send us a report within 
90 days after the transaction, as follows:
    (1) As the seller, you must include the following information in 
your report:
    (i) The corporate names of the buyer and any brokers.
    (ii) A copy of any contracts related to the trade.
    (iii) The engine families that generated emission credits for the 
trade, including the number of emission credits from each family.

[[Page 148]]

    (2) As the buyer, you must include the following information in your 
report:
    (i) The corporate names of the seller and any brokers.
    (ii) A copy of any contracts related to the trade.
    (iii) How you intend to use the emission credits, including the 
number of emission credits you intend to apply to each engine family (if 
known).
    (e) Send your reports electronically to the Designated Compliance 
Officer using an approved information format. If you want to use a 
different format, send us a written request with justification for a 
waiver.
    (f) Correct errors in your end-of-year report or final report as 
follows:
    (1) You may correct any errors in your end-of-year report when you 
prepare the final report, as long as you send us the final report by the 
time it is due.
    (2) If you or we determine within 270 days after the end of the 
model year that errors mistakenly decreased your balance of emission 
credits, you may correct the errors and recalculate the balance of 
emission credits. You may not make these corrections for errors that are 
determined more than 270 days after the end of the model year. If you 
report a negative balance of emission credits, we may disallow 
corrections under this paragraph (f)(2).
    (3) If you or we determine anytime that errors mistakenly increased 
your balance of emission credits, you must correct the errors and 
recalculate the balance of emission credits.

[69 FR 39213, June 29, 2004, as amended at 72 FR 53133, Sept. 18, 2007; 
75 FR 22992, Apr. 30, 2010]



Sec. 1039.735  What records must I keep?

    (a) You must organize and maintain your records as described in this 
section. We may review your records at any time.
    (b) Keep the records required by this section for at least eight 
years after the due date for the end-of-year report. You may not use 
emission credits for any engines if you do not keep all the records 
required under this section. You must therefore keep these records to 
continue to bank valid credits. Store these records in any format and on 
any media, as long as you can promptly send us organized, written 
records in English if we ask for them. You must keep these records 
readily available. We may review them at any time.
    (c) Keep a copy of the reports we require in Sec. 1039.725 and 
Sec. 1039.730.
    (d) Keep records of the engine identification number for each engine 
you produce that generates or uses emission credits under the ABT 
program. You may identify these numbers as a range. If you change the 
FEL after the start of production, identify the date you started using 
each FEL and the range of engine identification numbers associated with 
each FEL. You must also identify the purchaser and destination for each 
engine you produce to the extent this information is available.
    (e) We may require you to keep additional records or to send us 
relevant information not required by this section in accordance with the 
Clean Air Act.

[69 FR 39213, June 29, 2004, as amended at 72 FR 53133, Sept. 18, 2007; 
75 FR 22993, Apr. 30, 2010]



Sec. 1039.740  What restrictions apply for using emission credits?

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

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


[[Page 149]]

    (2) Emission credits generated from marine engines certified under 
the provisions of 40 CFR part 89 may not be used under this part.
    (3) See 40 CFR part 89 for other restrictions that may apply for 
using emission credits generated under that part.
    (4) If the maximum power of an engine generating credits under the 
Tier 2 standards in 40 CFR part 89 is at or above 37 kW and below 75 kW, 
you may use those credits for certifying engines under the Option 
1 standards in Sec. 1039.102.
    (c) NOX and NOX+NMHC emission credits. You may use NOX 
emission credits without adjustment to show compliance with 
NOX+NMHC standards. You may use NOX+NMHC emission 
credits to show compliance with NOX standards, but you must 
adjust the NOX+NMHC emission credits downward by twenty 
percent when you use them, as shown in the following equation:

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

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

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



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

    (a) For each engine family participating in the ABT program, the 
certificate of conformity is conditional upon full compliance with the 
provisions of this subpart during and after the model year. You are 
responsible to establish to our satisfaction that you fully comply with 
applicable requirements. We may void the certificate of conformity for 
an engine family if you fail to comply with any provisions of this 
subpart.
    (b) You may certify your engine family to an FEL above an applicable 
standard based on a projection that you will have enough emission 
credits to offset the deficit for the engine family. However, we may 
void the certificate of conformity if you cannot show in your final 
report that you have enough actual emission credits to offset a deficit 
for any pollutant in an engine family.
    (c) We may void the certificate of conformity for an engine family 
if you fail to keep records, send reports, or give us information we 
request.
    (d) You may ask for a hearing if we void your certificate under this 
section (see Sec. 1039.820).



          Subpart I_Definitions and Other Reference Information



Sec. 1039.801  What definitions apply to this part?

    The following definitions apply to this part. The definitions apply 
to all subparts unless we note otherwise. All undefined terms have the 
meaning the Act gives to them. The definitions follow:
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401-7671q.
    Adjustable parameter means any device, system, or element of design 
that someone can adjust (including those which are difficult to access) 
and that, if adjusted, may affect emissions or engine performance during 
emission testing or normal in-use operation. This includes, but is not 
limited to, parameters related to injection timing and fueling rate. You 
may ask us to exclude a parameter that is difficult to access if it 
cannot be adjusted to affect emissions without significantly degrading 
engine performance, or if you otherwise show us that it will not be 
adjusted in a way that affects emissions during in-use operation.
    Aftertreatment means relating to a catalytic converter, particulate 
filter, or any other system, component, or technology mounted downstream 
of the exhaust valve (or exhaust port) whose design function is to 
decrease emissions in the engine exhaust before it is exhausted to the 
environment. Exhaust-gas recirculation (EGR) and turbochargers are not 
aftertreatment.
    Aircraft means any vehicle capable of sustained air travel above 
treetop heights.
    Alcohol-fueled engine means an engine that is designed to run using 
an alcohol fuel. For purposes of this definition, alcohol fuels do not 
include fuels with a nominal alcohol content below 25 percent by volume.

[[Page 150]]

    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 means any element of design that 
senses temperature, motive speed, engine RPM, transmission gear, or any 
other parameter for the purpose of activating, modulating, delaying, or 
deactivating the operation of any part of the emission-control system.
    Brake power means the usable power output of the engine, not 
including power required to fuel, lubricate, or heat the engine, 
circulate coolant to the engine, or to operate aftertreatment devices.
    Calibration means the set of specifications and tolerances specific 
to a particular design, version, or application of a component or 
assembly capable of functionally describing its operation over its 
working range.
    Carryover means relating to certification based on emission data 
generated from an earlier model year as described in Sec. 1039.235(d).
    Certification means relating to the process of obtaining a 
certificate of conformity for an engine family that complies with the 
emission standards and requirements in this part.
    Certified emission level means the highest deteriorated emission 
level in an engine family for a given pollutant from either transient or 
steady-state testing.
    Compression-ignition means relating to a type of reciprocating, 
internal-combustion engine that is not a spark-ignition engine.
    Constant-speed engine means an engine whose certification is limited 
to constant-speed operation. Engines whose constant-speed governor 
function is removed or disabled are no longer constant-speed engines.
    Constant-speed operation has the meaning given in 40 CFR 1065.1001.
    Crankcase emissions means airborne substances emitted to the 
atmosphere from any part of the engine crankcase's ventilation or 
lubrication systems. The crankcase is the housing for the crankshaft and 
other related internal parts.
    Critical emission-related component means any of the following 
components:
    (1) Electronic control units, aftertreatment devices, fuel-metering 
components, EGR-system components, crankcase-ventilation valves, all 
components related to charge-air compression and cooling, and all 
sensors and actuators associated with any of these components.
    (2) Any other component whose primary purpose is to reduce 
emissions.
    Date of manufacture has the meaning given in 40 CFR 1068.30.
    Designated Compliance Officer means the Manager, Heavy-Duty and 
Nonroad Engine Group (6405-J), U.S. Environmental Protection Agency, 
1200 Pennsylvania Ave., NW., Washington, DC 20460.
    Designated Enforcement Officer means the Director, Air Enforcement 
Division (2242A), U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave., NW.,Washington, DC 20460.
    Deteriorated emission level means the emission level that results 
from applying the appropriate deterioration factor to the official 
emission result of the emission-data engine.
    Deterioration factor means the relationship between emissions at the 
end of useful life and emissions at the low-hour test point, expressed 
in one of the following ways:
    (1) For multiplicative deterioration factors, the ratio of emissions 
at the end of useful life to emissions at the low-hour test point.
    (2) For additive deterioration factors, the difference between 
emissions at the end of useful life and emissions at the low-hour test 
point.
    Discrete-mode means relating to the discrete-mode type of steady-
state test described in Sec. 1039.505.
    Emission-control system means any device, system, or element of 
design that controls or reduces the emissions of regulated pollutants 
from an engine.
    Emission-data engine means an engine that is tested for 
certification. This includes engines tested to establish deterioration 
factors.
    Emission-related maintenance means maintenance that substantially 
affects emissions or is likely to substantially affect emission 
deterioration.

[[Page 151]]

    Engine configuration means a unique combination of engine hardware 
and calibration within an engine family. Engines within a single engine 
configuration differ only with respect to normal production variability 
or factors unrelated to emissions.
    Engine family has the meaning given in Sec. 1039.230.
    Engine manufacturer means the manufacturer of the engine. See the 
definition of ``manufacturer'' in this section.
    Engine used in a locomotive means either an engine placed in the 
locomotive to move other equipment, freight, or passenger traffic; or an 
engine mounted on the locomotive to provide auxiliary power.
    Equipment manufacturer means a manufacturer of nonroad equipment. 
All nonroad equipment manufacturing entities under the control of the 
same person are considered to be a single nonroad equipment 
manufacturer. (Note: In Sec. 1039.626, the term ``equipment 
manufacturer'' has a narrower meaning, which applies only to that 
section.)
    Excluded means relating to an engine that either:
    (1) Has been determined not to be a nonroad engine, as specified in 
40 CFR 1068.30; or
    (2) Is a nonroad engine that, according to Sec. 1039.5, is not 
subject to this part 1039.
    Exempted has the meaning we give in 40 CFR 1068.30.
    Exhaust-gas recirculation means a technology that reduces emissions 
by routing exhaust gases that had been exhausted from the combustion 
chamber(s) back into the engine to be mixed with incoming air before or 
during combustion. The use of valve timing to increase the amount of 
residual exhaust gas in the combustion chamber(s) that is mixed with 
incoming air before or during combustion is not considered exhaust-gas 
recirculation for the purposes of this part.
    Family emission limit (FEL) means an emission level declared by the 
manufacturer to serve in place of an otherwise applicable emission 
standard under the ABT program in subpart H of this part. The family 
emission limit must be expressed to the same number of decimal places as 
the emission standard it replaces. The family emission limit serves as 
the emission standard for the engine family with respect to all required 
testing.
    Fuel system means all components involved in transporting, metering, 
and mixing the fuel from the fuel tank to the combustion chamber(s), 
including the fuel tank, fuel tank cap, fuel pump, fuel filters, fuel 
lines, carburetor or fuel-injection components, and all fuel-system 
vents.
    Fuel type means a general category of fuels such as diesel fuel or 
natural gas. There can be multiple grades within a single fuel type, 
such as high-sulfur or low-sulfur diesel fuel.
    Generator-set engine means an engine used primarily to operate an 
electrical generator or alternator to produce electric power for other 
applications.
    Good engineering judgment has the meaning we give in 40 CFR 1068.30. 
See 40 CFR 1068.5 for the administrative process we use to evaluate good 
engineering judgment.
    High-sulfur diesel fuel means one of the following:
    (1) For in-use fuels, high-sulfur diesel fuel means a diesel fuel 
with a maximum sulfur concentration greater than 500 parts per million.
    (2) For testing, high-sulfur diesel fuel has the meaning we give in 
40 CFR part 1065.
    Hydrocarbon (HC) means the hydrocarbon group on which the emission 
standards are based for each fuel type. For alcohol-fueled engines, HC 
means total hydrocarbon equivalent (THCE). For all other engines, HC 
means nonmethane hydrocarbon (NMHC).
    Identification number means a unique specification (for example, a 
model number/serial number combination) that allows someone to 
distinguish a particular engine from other similar engines.
    Intermediate test speed has the meaning given in 40 CFR 1065.1001.
    Low-hour means relating to an engine with stabilized emissions and 
represents the undeteriorated emission level. This would generally 
involve less than 300 hours of operation.
    Low-sulfur diesel fuel means one of the following:

[[Page 152]]

    (1) For in-use fuels, low-sulfur diesel fuel means a diesel fuel 
with a maximum sulfur concentration of 500 parts per million.
    (2) For testing, low-sulfur diesel fuel has the meaning we give in 
40 CFR part 1065.
    Manufacture means the physical and engineering process of designing, 
constructing, and assembling a nonroad engine or a piece of nonroad 
equipment.
    Manufacturer has the meaning given in section 216(1) of the Act. In 
general, this term includes any person who manufactures an engine, 
vehicle, or piece of equipment for sale in the United States or 
otherwise introduces a new nonroad engine into commerce in the United 
States. This includes importers who import engines, equipment, or 
vehicles for resale. (Note: In Sec. 1039.626, the term ``equipment 
manufacturer'' has a narrower meaning, which applies only to that 
section.)
    Marine engine means a nonroad engine that 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.
    (2) Auxiliary marine engine means a marine engine not used for 
propulsion.
    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.
    Maximum engine power has the meaning given in Sec. 1039.140. Note 
that Sec. 1039.230 generally disallows grouping engines from different 
power categories in the same engine family.
    Maximum test speed has the meaning we give in 40 CFR 1065.1001.
    Maximum test torque has the meaning we give in 40 CFR 1065.1001.
    Model year means one of the following things:
    (1) For freshly manufactured equipment and engines (see definition 
of ``new nonroad engine,'' paragraph (1)), model year means one of the 
following:
    (i) Calendar year.
    (ii) Your annual new model production period if it is different than 
the calendar year. This must include January 1 of the calendar year for 
which the model year is named. It may not begin before January 2 of the 
previous calendar year and it must end by December 31 of the named 
calendar year.
    (2) For an engine that is converted to a nonroad engine after being 
placed into service as a stationary engine, or being certified and 
placed into service as a motor vehicle engine, model year means the 
calendar year in which the engine was originally produced. For a motor 
vehicle engine that is converted to be a nonroad engine without having 
been certified, model year means the calendar year in which the engine 
becomes a new nonroad engine. (See definition of ``new nonroad engine,'' 
paragraph (2).)
    (3) For a nonroad engine excluded under Sec. 1039.5 that is later 
converted to operate in an application that is not excluded, model year 
means the calendar year in which the engine was originally produced (see 
definition of ``new nonroad engine,'' paragraph (3)).
    (4) For engines that are not freshly manufactured but are installed 
in new nonroad equipment, model year means the calendar year in which 
the engine is installed in the new nonroad equipment (see definition of 
``new nonroad engine,'' paragraph (4)).
    (5) For imported engines:
    (i) For imported engines described in paragraph (5)(i) of the 
definition of ``new nonroad engine,'' model year has the meaning given 
in paragraphs (1) through (4) of this definition.
    (ii) For imported engines described in paragraph (5)(ii) of the 
definition of ``new nonroad engine,'' model year has the meaning given 
in 40 CFR 89.602 for independent commercial importers.
    (iii) For imported engines described in paragraph (5)(iii) of the 
definition of ``new nonroad engine,'' model year means the calendar year 
in which the engine is first assembled in its imported configuration, 
unless specified otherwise in this part or in 40 CFR part 1068.

[[Page 153]]

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

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

    New nonroad equipment means either of the following things:
    (1) A nonroad piece of equipment for which the ultimate purchaser 
has never received the equitable or legal title. The product is no 
longer new when the ultimate purchaser receives this title or the 
product is placed into service, whichever comes first.
    (2) An imported nonroad piece of equipment with an engine not 
covered by a certificate of conformity issued

[[Page 154]]

under this part at the time of importation and manufactured after the 
requirements of this part start to apply (see Sec. 1039.1).
    Noncommercial fuel means a combustible product that is not marketed 
as a commercial fuel, but is used as a fuel for nonroad engines. For 
example, this includes methane that is produced and released from 
landfills or oil wells, or similar unprocessed fuels that are not 
intended to meet any otherwise applicable fuel specifications. See Sec. 
1039.615 for provisions related to engines designed to burn 
noncommercial fuels.
    Noncompliant engine means an engine that was originally covered by a 
certificate of conformity, but is not in the certified configuration or 
otherwise does not comply with the conditions of the certificate.
    Nonconforming engine means an engine not covered by a certificate of 
conformity that would otherwise be subject to emission standards.
    Nonmethane hydrocarbons (NMHC) means the sum of all hydrocarbon 
species except methane. Refer to 40 CFR 1065.660 for NMHC determination.
    Nonroad means relating to nonroad engines or equipment that includes 
nonroad engines.
    Nonroad engine has the meaning we give in 40 CFR 1068.30. In general 
this means all internal-combustion engines except motor vehicle engines, 
stationary engines, engines used solely for competition, or engines used 
in aircraft. This part does not apply to all nonroad engines (see Sec. 
1039.5).
    Nonroad equipment means a piece of equipment that is powered by one 
or more nonroad engines.
    Official emission result means the measured emission rate for an 
emission-data engine on a given duty cycle before the application of any 
deterioration factor, but after the applicability of regeneration 
adjustment factors.
    Opacity means the fraction of a beam of light, expressed in percent, 
which fails to penetrate a plume of smoke, as measured by the procedure 
specified in Sec. 1039.501.
    Owners manual means a document or collection of documents prepared 
by the engine manufacturer for the owner or operator to describe 
appropriate engine maintenance, applicable warranties, and any other 
information related to operating or keeping the engine. The owners 
manual is typically provided to the ultimate purchaser at the time of 
sale.
    Oxides of nitrogen has the meaning given in 40 CFR 1065.1001.
    Particulate trap means a filtering device that is designed to 
physically trap all particulate matter above a certain size.
    Piece of equipment means any vehicle, vessel, or other type of 
equipment using engines to which this part applies.
    Placed into service means put into initial use for its intended 
purpose.
    Point of first retail sale means the location at which the initial 
retail sale occurs. This generally means an equipment dealership, but 
may also include an engine seller or distributor in cases where loose 
engines are sold to the general public for uses such as replacement 
engines.
    Power category means a specific range of maximum engine power that 
defines the applicability of standards. For example, references to the 
56-130 kW power category and 56 <= kW < 130 include all engines with 
maximum engine power at or above 56 kW but below 130 kW. Also references 
to 56-560 kW power categories or 56 <= kW <= 560 include all engines 
with maximum engine power at or above 56 kW but at or below 560 kW, even 
though these engines span multiple power categories. Note that in some 
cases, FEL caps are based on a subset of a power category. The power 
categories are defined as follows:
    (1) Engines with maximum power below 19 kW.
    (2) Engines with maximum power at or above 19 kW but below 56 kW.
    (3) Engines with maximum power at or above 56 kW but below 130 kW.
    (4) Engines with maximum power at or above 130 kW but at or below 
560 kW.
    (5) Engines with maximum power above 560 kW.
    Ramped-modal means relating to the ramped-modal type of steady-state 
test described in Sec. 1039.505.
    Rated speed means the maximum full-load governed speed for governed 
engines and the speed of maximum power for ungoverned engines.

[[Page 155]]

    Revoke has the meaning we give in 40 CFR 1068.30.
    Round has the meaning given in 40 CFR 1065.1001.
    Scheduled maintenance means adjusting, repairing, removing, 
disassembling, cleaning, or replacing components or systems periodically 
to keep a part or system from failing, malfunctioning, or wearing 
prematurely. It also may mean actions you expect are necessary to 
correct an overt indication of failure or malfunction for which periodic 
maintenance is not appropriate.
    Small-volume engine manufacturer means a small business engine 
manufacturer that had engine families certified to meet the requirements 
of 40 CFR part 89 before 2003 (40 CFR part 89, revised as of July 1, 
2002), had annual U.S.-directed production of no more than 2,500 units 
in 2002 and all earlier calendar years, and has 1000 or fewer employees. 
For manufacturers owned by a parent company, the production limit 
applies to the production of the parent company and all its subsidiaries 
and the employee limit applies to the total number of employees of the 
parent company and all its subsidiaries.
    Spark-ignition means relating to a gasoline-fueled engine or any 
other type of engine with a spark plug (or other sparking device) and 
with operating characteristics significantly similar to the theoretical 
Otto combustion cycle. Spark-ignition engines usually use a throttle to 
regulate intake air flow to control power during normal operation.
    Steady-state has the meaning given in 40 CFR 1065.1001.
    Sulfur-sensitive technology means an emission-control technology 
that experiences a significant drop in emission-control performance or 
emission-system durability when an engine is operated on low-sulfur fuel 
(i.e., fuel with a sulfur concentration of 300 to 500 ppm) as compared 
to when it is operated on ultra low-sulfur fuel (i.e., fuel with a 
sulfur concentration less than 15 ppm). Exhaust-gas recirculation is not 
a sulfur-sensitive technology.
    Suspend has the meaning we give in 40 CFR 1068.30.
    Test engine means an engine in a test sample.
    Test sample means the collection of engines selected from the 
population of an engine family for emission testing. This may include 
testing for certification, production-line testing, or in-use testing.
    Tier 1 means relating to the Tier 1 emission standards, as shown in 
40 CFR 89.112.
    Tier 2 means relating to the Tier 2 emission standards, as shown in 
40 CFR 89.112.
    Tier 3 means relating to the Tier 3 emission standards, as shown in 
40 CFR 89.112.
    Tier 4 means relating to the Tier 4 emission standards, as shown in 
Sec. 1039.101 and Sec. 1039.102. This includes the emission standards 
that are shown in Sec. 1039.101 and Sec. 1039.102 that are unchanged 
from Tier 2 or Tier 3 emission standards.
    Total hydrocarbon has the meaning given in 40 CFR 1065.1001. This 
generally means the combined mass of organic compounds measured by the 
specified procedure for measuring total hydrocarbon, expressed as a 
hydrocarbon with an atomic hydrogen-to-carbon ratio of 1.85:1.
    Total hydrocarbon equivalent has the meaning given in 40 CFR 
1065.1001. This generally means the sum of the carbon mass contributions 
of non-oxygenated hydrocarbons, alcohols and aldehydes, or other organic 
compounds that are measured separately as contained in a gas sample, 
expressed as exhaust hydrocarbon from petroleum-fueled engines. The 
atomic hydrogen-to-carbon ratio of the equivalent hydrocarbon is 1.85:1.
    Ultimate purchaser means, with respect to any new nonroad equipment 
or new nonroad engine, the first person who in good faith purchases such 
new nonroad equipment or new nonroad engine for purposes other than 
resale.
    Ultra low-sulfur diesel fuel means one of the following:
    (1) For in-use fuels, ultra low-sulfur diesel fuel means a diesel 
fuel with a maximum sulfur concentration of 15 parts per million.
    (2) For testing, ultra low-sulfur diesel fuel has the meaning we 
give in 40 CFR part 1065.
    United States has the meaning we give in 40 CFR 1068.30.

[[Page 156]]

    Upcoming model year means for an engine family the model year after 
the one currently in production.
    U.S.-directed production volume means the number of engine units, 
subject to the requirements of this part, produced by a manufacturer for 
which the manufacturer has a reasonable assurance that sale was or will 
be made to ultimate purchasers in the United States.
    Useful life means the period during which the engine is designed to 
properly function in terms of reliability and fuel consumption, without 
being remanufactured, specified as a number of hours of operation or 
calendar years, whichever comes first. It is the period during which a 
nonroad engine is required to comply with all applicable emission 
standards. See Sec. 1039.101(g).
    Variable-speed engine means an engine that is not a constant-speed 
engine.
    Void has the meaning we give in 40 CFR 1068.30.
    Volatile liquid fuel means any fuel other than diesel or biodiesel 
that is a liquid at atmospheric pressure and has a Reid Vapor Pressure 
higher than 2.0 pounds per square inch.
    We (us, our) means the Administrator of the Environmental Protection 
Agency and any authorized representatives.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40464, July 13, 2005; 
72 FR 53133, Sept. 18, 2007; 73 FR 59192, Oct. 8, 2008; 75 FR 22993, 
Apr. 30, 2010]



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

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

CFR Code of Federal Regulations.
CH4 methane.
CO carbon monoxide.
CO2 carbon dioxide.
EPA Environmental Protection Agency.
FEL Family Emission Limit.
g/kW-hr grams per kilowatt-hour.
HC hydrocarbon.
kW kilowatts.
N2O nitrous oxide.
NIST National Institute of Standards and Technology.
NMHC nonmethane hydrocarbons.
NOX oxides of nitrogen (NO and NO2).
NTE not-to-exceed
PM particulate matter.
rpm revolutions per minute.
SAE Society of Automotive Engineers.
SEA Selective enforcement audit.
THC total hydrocarbon.
THCE total hydrocarbon equivalent.
TRU transportation refrigeration unit.
U.S.C. United States Code.

[69 FR 39213, June 29, 2004, as amended at 74 FR 56509, Oct. 30, 2009]



Sec. 1039.815  What provisions apply to confidential information?

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



Sec. 1039.820  How do I request a hearing?

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



Sec. 1039.825  What reporting and recordkeeping requirements apply under this part?

    Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the 
Office of Management and Budget approves the reporting and recordkeeping 
specified in the applicable regulations. The following items illustrate 
the kind of reporting and recordkeeping we require for engines and 
equipment regulated under this part:

[[Page 157]]

    (a) We specify the following requirements related to engine 
certification in this part 1039:
    (1) In Sec. 1039.20 we require engine manufacturers to label 
stationary engines that do not meet the standards in this part.
    (2) In Sec. 1039.135 we require engine manufacturers to keep 
certain records related to duplicate labels sent to equipment 
manufacturers.
    (3) [Reserved]
    (4) In subpart C of this part we identify a wide range of 
information required to certify engines.
    (5) [Reserved]
    (6) [Reserved]
    (7) In subpart G of this part we identify several reporting and 
recordkeeping items for making demonstrations and getting approval 
related to various special compliance provisions. For example, equipment 
manufacturers must submit reports and keep records related to the 
flexibility provisions in Sec. 1039.625.
    (8) In Sec. 1039.725, 1039.730, and 1039.735 we specify certain 
records related to averaging, banking, and trading.
    (b) We specify the following requirements related to testing in 40 
CFR part 1065:
    (1) In 40 CFR 1065.2 we give an overview of principles for reporting 
information.
    (2) In 40 CFR 1065.10 and 1065.12 we specify information needs for 
establishing various changes to published test procedures.
    (3) In 40 CFR 1065.25 we establish basic guidelines for storing test 
information.
    (4) In 40 CFR 1065.695 we identify data that may be appropriate for 
collecting during testing of in-use engines using portable analyzers.
    (c) We specify the following requirements related to the general 
compliance provisions in 40 CFR part 1068:
    (1) In 40 CFR 1068.5 we establish a process for evaluating good 
engineering judgment related to testing and certification.
    (2) In 40 CFR 1068.25 we describe general provisions related to 
sending and keeping information.
    (3) In 40 CFR 1068.27 we require manufacturers to make engines 
available for our testing or inspection if we make such a request.
    (4) In 40 CFR 1068.105 we require equipment manufacturers to keep 
certain records related to duplicate labels from engine manufacturers.
    (5) In 40 CFR 1068.120 we specify recordkeeping related to 
rebuilding engines.
    (6) In 40 CFR part 1068, subpart C, we identify several reporting 
and recordkeeping items for making demonstrations and getting approval 
related to various exemptions.
    (7) In 40 CFR part 1068, subpart D, we identify several reporting 
and recordkeeping items for making demonstrations and getting approval 
related to importing engines.
    (8) In 40 CFR 1068.450 and 1068.455 we specify certain records 
related to testing production-line engines in a selective enforcement 
audit.
    (9) In 40 CFR 1068.501 we specify certain records related to 
investigating and reporting emission-related defects.
    (10) In 40 CFR 1068.525 and 1068.530 we specify certain records 
related to recalling nonconforming engines.

[72 FR 53134, Sept. 18, 2007]



                 Sec. Appendix I to Part 1039 [Reserved]



         Sec. Appendix II to Part 1039--Steady-State Duty Cycles

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

----------------------------------------------------------------------------------------------------------------
                                                                                      Torque         Weighting
               D2 mode number                            Engine speed              (percent) \1\      factors
----------------------------------------------------------------------------------------------------------------
1..........................................  Engine governed....................             100            0.05
2..........................................  Engine governed....................              75            0.25
3..........................................  Engine governed....................              50            0.30
4..........................................  Engine governed....................              25            0.30
5..........................................  Engine governed....................              10            0.10
----------------------------------------------------------------------------------------------------------------
\1\ The percent torque is relative to maximum test torque.


[[Page 158]]

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

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

    (b) The following duty cycles apply for variable-speed engines with 
maximum engine power below 19 kW:
    (1) The following duty cycle applies for discrete-mode testing:

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

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

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

    (c) The following duty cycles apply for variable-speed engines with 
maximum engine power at or above 19 kW:
    (1) The following duty cycle applies for discrete-mode testing:

----------------------------------------------------------------------------------------------------------------
                                                                                      Torque         Weighting
               C1 mode number                          Engine speed \1\            (percent) \2\      factors
----------------------------------------------------------------------------------------------------------------
1..........................................  Maximum test speed.................             100            0.15
2..........................................  Maximum test speed.................              75            0.15
3..........................................  Maximum test speed.................              50            0.15

[[Page 159]]

 
4..........................................  Maximum test speed.................              10            0.10
5..........................................  Intermediate test speed............             100            0.10
6..........................................  Intermediate test speed............              75            0.10
7..........................................  Intermediate test speed............              50            0.10
8..........................................  Warm idle..........................               0            0.15
----------------------------------------------------------------------------------------------------------------
\1\ Speed terms are defined in 40 CFR part 1065.
\2\ The percent torque is relative to the maximum torque at the commanded test speed.

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

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


[69 FR 39213, June 29, 2004, as amended at 73 FR 37241, June 30, 2008]



                 Sec. Appendix V to Part 1039 [Reserved]



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

------------------------------------------------------------------------
                                                              Normalized
                                                 Normalized     torque
                    Time(s)                        speed      (percent)
                                                 (percent)       \1\
------------------------------------------------------------------------
1.............................................            0            0
2.............................................            0            0
3.............................................            0            0
4.............................................            0            0
5.............................................            0            0
6.............................................            0            0
7.............................................            0            0
8.............................................            0            0
9.............................................            0            0
10............................................            0            0
11............................................            0            0
12............................................            0            0
13............................................            0            0
14............................................            0            0
15............................................            0            0
16............................................            0            0
17............................................            0            0
18............................................            0            0
19............................................            0            0
20............................................            0            0
21............................................            0            0
22............................................            0            0
23............................................            0            0
24............................................            1            3
25............................................            1            3
26............................................            1            3
27............................................            1            3
28............................................            1            3
29............................................            1            3
30............................................            1            6
31............................................            1            6
32............................................            2            1
33............................................            4           13
34............................................            7           18
35............................................            9           21
36............................................           17           20
37............................................           33           42
38............................................           57           46
39............................................           44           33
40............................................           31            0
41............................................           22           27
42............................................           33           43
43............................................           80           49
44............................................          105           47
45............................................           98           70
46............................................          104           36
47............................................          104           65

[[Page 160]]

 
48............................................           96           71
49............................................          101           62
50............................................          102           51
51............................................          102           50
52............................................          102           46
53............................................          102           41
54............................................          102           31
55............................................           89            2
56............................................           82            0
57............................................           47            1
58............................................           23            1
59............................................            1            3
60............................................            1            8
61............................................            1            3
62............................................            1            5
63............................................            1            6
64............................................            1            4
65............................................            1            4
66............................................            0            6
67............................................            1            4
68............................................            9           21
69............................................           25           56
70............................................           64           26
71............................................           60           31
72............................................           63           20
73............................................           62           24
74............................................           64            8
75............................................           58           44
76............................................           65           10
77............................................           65           12
78............................................           68           23
79............................................           69           30
80............................................           71           30
81............................................           74           15
82............................................           71           23
83............................................           73           20
84............................................           73           21
85............................................           73           19
86............................................           70           33
87............................................           70           34
88............................................           65           47
89............................................           66           47
90............................................           64           53
91............................................           65           45
92............................................           66           38
93............................................           67           49
94............................................           69           39
95............................................           69           39
96............................................           66           42
97............................................           71           29
98............................................           75           29
99............................................           72           23
100...........................................           74           22
101...........................................           75           24
102...........................................           73           30
103...........................................           74           24
104...........................................           77            6
105...........................................           76           12
106...........................................           74           39
107...........................................           72           30
108...........................................           75           22
109...........................................           78           64
110...........................................          102           34
111...........................................          103           28
112...........................................          103           28
113...........................................          103           19
114...........................................          103           32
115...........................................          104           25
116...........................................          103           38
117...........................................          103           39
118...........................................          103           34
119...........................................          102           44
120...........................................          103           38
121...........................................          102           43
122...........................................          103           34
123...........................................          102           41
124...........................................          103           44
125...........................................          103           37
126...........................................          103           27
127...........................................          104           13
128...........................................          104           30
129...........................................          104           19
130...........................................          103           28
131...........................................          104           40
132...........................................          104           32
133...........................................          101           63
134...........................................          102           54
135...........................................          102           52
136...........................................          102           51
137...........................................          103           40
138...........................................          104           34
139...........................................          102           36
140...........................................          104           44
141...........................................          103           44
142...........................................          104           33
143...........................................          102           27
144...........................................          103           26
145...........................................           79           53
146...........................................           51           37
147...........................................           24           23
148...........................................           13           33
149...........................................           19           55
150...........................................           45           30
151...........................................           34            7
152...........................................           14            4
153...........................................            8           16
154...........................................           15            6
155...........................................           39           47
156...........................................           39            4
157...........................................           35           26
158...........................................           27           38
159...........................................           43           40
160...........................................           14           23
161...........................................           10           10
162...........................................           15           33
163...........................................           35           72
164...........................................           60           39
165...........................................           55           31
166...........................................           47           30
167...........................................           16            7
168...........................................            0            6
169...........................................            0            8
170...........................................            0            8
171...........................................            0            2
172...........................................            2           17
173...........................................           10           28
174...........................................           28           31
175...........................................           33           30
176...........................................           36            0
177...........................................           19           10
178...........................................            1           18
179...........................................            0           16
180...........................................            1            3
181...........................................            1            4
182...........................................            1            5
183...........................................            1            6
184...........................................            1            5
185...........................................            1            3
186...........................................            1            4
187...........................................            1            4
188...........................................            1            6
189...........................................            8           18
190...........................................           20           51
191...........................................           49           19

[[Page 161]]

 
192...........................................           41           13
193...........................................           31           16
194...........................................           28           21
195...........................................           21           17
196...........................................           31           21
197...........................................           21            8
198...........................................            0           14
199...........................................            0           12
200...........................................            3            8
201...........................................            3           22
202...........................................           12           20
203...........................................           14           20
204...........................................           16           17
205...........................................           20           18
206...........................................           27           34
207...........................................           32           33
208...........................................           41           31
209...........................................           43           31
210...........................................           37           33
211...........................................           26           18
212...........................................           18           29
213...........................................           14           51
214...........................................           13           11
215...........................................           12            9
216...........................................           15           33
217...........................................           20           25
218...........................................           25           17
219...........................................           31           29
220...........................................           36           66
221...........................................           66           40
222...........................................           50           13
223...........................................           16           24
224...........................................           26           50
225...........................................           64           23
226...........................................           81           20
227...........................................           83           11
228...........................................           79           23
229...........................................           76           31
230...........................................           68           24
231...........................................           59           33
232...........................................           59            3
233...........................................           25            7
234...........................................           21           10
235...........................................           20           19
236...........................................            4           10
237...........................................            5            7
238...........................................            4            5
239...........................................            4            6
240...........................................            4            6
241...........................................            4            5
242...........................................            7            5
243...........................................           16           28
244...........................................           28           25
245...........................................           52           53
246...........................................           50            8
247...........................................           26           40
248...........................................           48           29
249...........................................           54           39
250...........................................           60           42
251...........................................           48           18
252...........................................           54           51
253...........................................           88           90
254...........................................          103           84
255...........................................          103           85
256...........................................          102           84
257...........................................           58           66
258...........................................           64           97
259...........................................           56           80
260...........................................           51           67
261...........................................           52           96
262...........................................           63           62
263...........................................           71            6
264...........................................           33           16
265...........................................           47           45
266...........................................           43           56
267...........................................           42           27
268...........................................           42           64
269...........................................           75           74
270...........................................           68           96
271...........................................           86           61
272...........................................           66            0
273...........................................           37            0
274...........................................           45           37
275...........................................           68           96
276...........................................           80           97
277...........................................           92           96
278...........................................           90           97
279...........................................           82           96
280...........................................           94           81
281...........................................           90           85
282...........................................           96           65
283...........................................           70           96
284...........................................           55           95
285...........................................           70           96
286...........................................           79           96
287...........................................           81           71
288...........................................           71           60
289...........................................           92           65
290...........................................           82           63
291...........................................           61           47
292...........................................           52           37
293...........................................           24            0
294...........................................           20            7
295...........................................           39           48
296...........................................           39           54
297...........................................           63           58
298...........................................           53           31
299...........................................           51           24
300...........................................           48           40
301...........................................           39            0
302...........................................           35           18
303...........................................           36           16
304...........................................           29           17
305...........................................           28           21
306...........................................           31           15
307...........................................           31           10
308...........................................           43           19
309...........................................           49           63
310...........................................           78           61
311...........................................           78           46
312...........................................           66           65
313...........................................           78           97
314...........................................           84           63
315...........................................           57           26
316...........................................           36           22
317...........................................           20           34
318...........................................           19            8
319...........................................            9           10
320...........................................            5            5
321...........................................            7           11
322...........................................           15           15
323...........................................           12            9
324...........................................           13           27
325...........................................           15           28
326...........................................           16           28
327...........................................           16           31
328...........................................           15           20
329...........................................           17            0
330...........................................           20           34
331...........................................           21           25
332...........................................           20            0
333...........................................           23           25
334...........................................           30           58
335...........................................           63           96

[[Page 162]]

 
336...........................................           83           60
337...........................................           61            0
338...........................................           26            0
339...........................................           29           44
340...........................................           68           97
341...........................................           80           97
342...........................................           88           97
343...........................................           99           88
344...........................................          102           86
345...........................................          100           82
346...........................................           74           79
347...........................................           57           79
348...........................................           76           97
349...........................................           84           97
350...........................................           86           97
351...........................................           81           98
352...........................................           83           83
353...........................................           65           96
354...........................................           93           72
355...........................................           63           60
356...........................................           72           49
357...........................................           56           27
358...........................................           29            0
359...........................................           18           13
360...........................................           25           11
361...........................................           28           24
362...........................................           34           53
363...........................................           65           83
364...........................................           80           44
365...........................................           77           46
366...........................................           76           50
367...........................................           45           52
368...........................................           61           98
369...........................................           61           69
370...........................................           63           49
371...........................................           32            0
372...........................................           10            8
373...........................................           17            7
374...........................................           16           13
375...........................................           11            6
376...........................................            9            5
377...........................................            9           12
378...........................................           12           46
379...........................................           15           30
380...........................................           26           28
381...........................................           13            9
382...........................................           16           21
383...........................................           24            4
384...........................................           36           43
385...........................................           65           85
386...........................................           78           66
387...........................................           63           39
388...........................................           32           34
389...........................................           46           55
390...........................................           47           42
391...........................................           42           39
392...........................................           27            0
393...........................................           14            5
394...........................................           14           14
395...........................................           24           54
396...........................................           60           90
397...........................................           53           66
398...........................................           70           48
399...........................................           77           93
400...........................................           79           67
401...........................................           46           65
402...........................................           69           98
403...........................................           80           97
404...........................................           74           97
405...........................................           75           98
406...........................................           56           61
407...........................................           42            0
408...........................................           36           32
409...........................................           34           43
410...........................................           68           83
411...........................................          102           48
412...........................................           62            0
413...........................................           41           39
414...........................................           71           86
415...........................................           91           52
416...........................................           89           55
417...........................................           89           56
418...........................................           88           58
419...........................................           78           69
420...........................................           98           39
421...........................................           64           61
422...........................................           90           34
423...........................................           88           38
424...........................................           97           62
425...........................................          100           53
426...........................................           81           58
427...........................................           74           51
428...........................................           76           57
429...........................................           76           72
430...........................................           85           72
431...........................................           84           60
432...........................................           83           72
433...........................................           83           72
434...........................................           86           72
435...........................................           89           72
436...........................................           86           72
437...........................................           87           72
438...........................................           88           72
439...........................................           88           71
440...........................................           87           72
441...........................................           85           71
442...........................................           88           72
443...........................................           88           72
444...........................................           84           72
445...........................................           83           73
446...........................................           77           73
447...........................................           74           73
448...........................................           76           72
449...........................................           46           77
450...........................................           78           62
451...........................................           79           35
452...........................................           82           38
453...........................................           81           41
454...........................................           79           37
455...........................................           78           35
456...........................................           78           38
457...........................................           78           46
458...........................................           75           49
459...........................................           73           50
460...........................................           79           58
461...........................................           79           71
462...........................................           83           44
463...........................................           53           48
464...........................................           40           48
465...........................................           51           75
466...........................................           75           72
467...........................................           89           67
468...........................................           93           60
469...........................................           89           73
470...........................................           86           73
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1210..........................................           54           50
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1212..........................................           27           25
1213..........................................           14           12
1214..........................................            0            0
1215..........................................            0            0
1216..........................................            0            0
1217..........................................            0            0
1218..........................................            0            0
1219..........................................            0            0
1220..........................................            0            0
1221..........................................            0            0
1222..........................................            0            0
1223..........................................            0            0
1224..........................................            0            0
1225..........................................            0            0
1226..........................................            0            0
1227..........................................            0            0
1228..........................................            0            0
1229..........................................            0            0
1230..........................................            0            0
1231..........................................            0            0
1232..........................................            0            0
1233..........................................            0            0
1234..........................................            0            0
1235..........................................            0            0
1236..........................................            0            0
1237..........................................            0            0
1238..........................................            0            0
------------------------------------------------------------------------
\1\ The percent torque is relative to maximum torque at the commanded
  engine speed.


[69 FR 39213, June 29, 2004, as amended at 70 FR 40465, July 13, 2005]



PART 1042_CONTROL OF EMISSIONS FROM NEW AND IN-USE MARINE COMPRESSION-IGNITION

ENGINES AND VESSELS--Table of Contents



                  Subpart A_Overview and Applicability

Sec.
1042.1 Applicability.
1042.2 Who is responsible for compliance?
1042.5 Exclusions.
1042.10 Organization of this part.
1042.15 Do any other regulation parts apply to me?
1042.30 Submission of information.

          Subpart B_Emission Standards and Related Requirements

1042.101 Exhaust emission standards for Category 1 engines and Category 
          2 engines.
1042.104 Exhaust emission standards for Category 3 engines.
1042.107 Evaporative emission standards.
1042.110 Recording reductant use and other diagnostic functions.
1042.115 Other requirements.
1042.120 Emission-related warranty requirements.
1042.125 Maintenance instructions.
1042.130 Installation instructions for vessel manufacturers.
1042.135 Labeling.
1042.140 Maximum engine power, displacement, power density, and maximum 
          in-use engine speed.
1042.145 Interim provisions.

                  Subpart C_Certifying Engine Families

1042.201 General requirements for obtaining a certificate of conformity.
1042.205 Application requirements.
1042.210 Preliminary approval.
1042.220 Amending maintenance instructions.
1042.225 Amending applications for certification.
1042.230 Engine families.
1042.235 Emission testing related to certification.
1042.240 Demonstrating compliance with exhaust emission standards.
1042.245 Deterioration factors.
1042.250 Recordkeeping and reporting.
1042.255 EPA decisions.

                Subpart D_Testing Production-Line Engines

1042.301 General provisions.
1042.302 Applicability of this subpart for Category 3 engines.
1042.305 Preparing and testing production-line engines.
1042.310 Engine selection for Category 1 and Category 2 engines.
1042.315 Determining compliance.
1042.320 What happens if one of my production-line engines fails to meet 
          emission standards?
1042.325 What happens if an engine family fails the production-line 
          testing requirements?
1042.330 Selling engines from an engine family with a suspended 
          certificate of conformity.
1042.335 Reinstating suspended certificates.
1042.340 When may EPA revoke my certificate under this subpart and how 
          may I sell these engines again?
1042.345 Reporting.
1042.350 Recordkeeping.

                        Subpart E_In-Use Testing

1042.401 General Provisions.

[[Page 169]]

                        Subpart F_Test Procedures

1042.501 How do I run a valid emission test?
1042.505 Testing engines using discrete-mode or ramped-modal duty 
          cycles.
1042.515 Test procedures related to not-to-exceed standards.
1042.520 What testing must I perform to establish deterioration factors?
1042.525 How do I adjust emission levels to account for infrequently 
          regenerating aftertreatment devices?

                 Subpart G_Special Compliance Provisions

1042.601. General compliance provisions for marine engines and vessels.
1042.605 Dressing engines already certified to other standards for 
          nonroad or heavy-duty highway engines for marine use.
1042.610 Certifying auxiliary marine engines to land-based standards.
1042.615 Replacement engine exemption.
1042.620 Engines used solely for competition.
1042.625 Special provisions for engines used in emergency applications.
1042.630 Personal-use exemption.
1042.635 National security exemption.
1042.640 Special provisions for branded engines.
1042.650 Exemptions for migratory vessels and auxiliary engines on 
          Category 3 vessels.
1042.655 Special certification provisions for--Category 3 engines with 
          aftertreatment.
1042.660 Requirements for vessel manufacturers, owners, and operators.
1042.670 Special provisions for gas turbine engines.

       Subpart H_Averaging, Banking, and Trading for Certification

1042.701 General provisions.
1042.705 Generating and calculating emission credits.
1042.710 Averaging emission credits.
1042.715 Banking emission credits.
1042.720 Trading emission credits.
1042.725 Information required for the application for certification.
1042.730 ABT reports.
1042.735 Recordkeeping.
1042.745 Noncompliance.

     Subpart I_Special Provisions for Remanufactured Marine Engines

1042.801 General provisions.
1042.810 Requirements for owner/operators and installers during 
          remanufacture.
1042.815 Demonstrating availability.
1042.820 Emission standards and required emission reductions for 
          remanufactured engines.
1042.825 Baseline determination.
1042.830 Labeling.
1042.835 Certification of remanufactured engines.
1042.836 Marine certification of locomotive remanufacturing systems.
1042.840 Application requirements for remanufactured engines.
1042.845 Remanufactured engine families.
1042.850 Exemptions and hardship relief.

          Subpart J_Definitions and Other Reference Information

1042.901 Definitions.
1042.905 Symbols, acronyms, and abbreviations.
1042.910 Reference materials.
1042.915 Confidential information.
1042.920 Hearings.
1042.925 Reporting and recordkeeping requirements.

Appendix I to Part 1042--Summary of Previous Emission Standards
Appendix II to Part 1042--Steady-state Duty Cycles
Appendix III to Part 1042--Not-to-Exceed Zones

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

    Source: 73 FR 37243, June 30, 2008, unless otherwise noted.



                  Subpart A_Overview and Applicability



Sec. 1042.1  Applicability.

    Except as provided in this section and Sec. 1042.5, the regulations 
in this part 1042 apply for all new compression-ignition marine engines 
(including new engines deemed to be compression-ignition engines under 
this section) and vessels containing such engines. See Sec. 1042.901 
for the definitions of engines and vessels considered to be new.
    (a) The emission standards of this part 1042 for freshly 
manufactured engines apply for new marine engines starting with the 
model years noted in the following tables:

                         Table 1 to Sec.  1042.1--Part 1042 Applicability by Model Year
----------------------------------------------------------------------------------------------------------------
                                                                          Displacement (L/cyl) or
             Engine category                 Maximum engine power a             application           Model year
----------------------------------------------------------------------------------------------------------------
Category 1..............................  kW < 75....................  disp. < 0.9.................       b 2009
                                         -----------------------------------------------------------------------

[[Page 170]]

 
                                          75 <= kW <= 3700...........  disp. < 0.9.................         2012
                                                                      ------------------------------------------
                                                                       0.9 <= disp. < 1.2..........         2013
                                                                      ------------------------------------------
                                                                       1.2 <= disp. < 2.5..........         2014
                                                                      ------------------------------------------
                                                                       2.5 <= disp. < 3.5..........         2013
                                                                      ------------------------------------------
                                                                       3.5 <= disp. < 7.0..........         2012
                                         -----------------------------------------------------------------------
                                          kW  3700........  disp. < 7.0.................         2014
----------------------------------------------------------------------------------------------------------------
Category 2..............................  kW <= 3700.................  7.0 < disp. < 15.0..........         2013
                                         -----------------------------------------------------------------------
                                          kW  3700........  7.0 <= disp. < 15.0.........         2014
                                         -----------------------------------------------------------------------
                                          All........................  15 <= disp. < 30............         2014
----------------------------------------------------------------------------------------------------------------
Category 3..............................  All........................  disp. = 30.......         2011
----------------------------------------------------------------------------------------------------------------
a See Sec.  1042.140, which describes how to determine maximum engine power.
b See Table 1 of Sec.  1042.101 for the first model year in which this part 1042 applies for engines with
  maximum engine power below 75 kW and displacement at or above 0.9 L/cyl.

    (b) New engines with maximum engine power below 37 kW and originally 
manufactured and certified before the model years identified in Table 1 
to this section are subject to emission standards and requirements of 40 
CFR part 89. The provisions of this part 1042 do not apply for such 
engines certified under 40 CFR part 89, except as follows beginning June 
29, 2010:
    (1) The allowances of this part apply.
    (2) The definitions of ``new marine engine'' and ``model year'' 
apply.
    (c) Freshly manufactured engines with maximum engine power at or 
above 37 kW and originally manufactured and certified before the model 
years identified in Table 1 to this section are subject to emission 
standards and requirements of 40 CFR part 94. The provisions of this 
part 1042 do not apply for such engines certified under 40 CFR part 89, 
except as follows beginning June 29, 2010:
    (1) The allowances of this part apply.
    (2) The definitions of ``new marine engine'' and ``model year'' 
apply.
    (3) The remanufacturing provisions in subpart I of this part may 
apply for remanufactured engines originally manufactured in model years 
before the model years identified in Table 1 to this section.
    (4) 40 CFR part 94 specifies other provisions from this part 1042 
that apply.
    (d) Engines with model years before those specified in Table 1 to 
this section are generally subject to the Tier 1 or Tier 2 standards of 
40 CFR part 94. Such engines may be certified to those standards under 
this part 1042. All the provisions of this part except the emission 
standards apply to such engines if they are certified under this part. 
Note that engines subject to, but not certified to, the standards of 40 
CFR part 94 are subject to the requirements and prohibitions of this 
part and 40 CFR part 1068.
    (e) The requirements of subpart I of this part apply to 
remanufactured Category 1 and Category 2 engines beginning July 7, 2008.
    (f) The marine engines listed in this paragraph (f) are subject to 
all the requirements of this part even if they do not meet the 
definition of ``compression-ignition'' in Sec. 1042.901. The following 
engines are deemed to be compression-ignition engines for purposes of 
this part:
    (1) Marine engines powered by natural gas or other gaseous fuels 
with maximum engine power at or above 250 kW. Note that gaseous-fueled 
engines with maximum engine power below 250 kW may or may not meet the 
definition of ``compression-ignition'' in Sec. 1042.901.
    (2) Marine gas turbine engines.
    (3) Other marine internal combustion engines that do not meet the 
definition of ``spark-ignition'' in Sec. 1042.901.

[[Page 171]]

    (g) Some of the provisions of this part may apply for other engines 
as specified in 40 CFR part 1043.

[75 FR 22994, Apr. 30, 2010]

    Effective Date Note: At 76 FR 37977, June 28, 2011, Sec. 1042.1 was 
amended by adding paragraph (h), effective August 29, 2011. For the 
convenience of the user, the added text is set forth as follows:



Sec. 1042.1  Applicability

                                * * * * *

    (h) Starting with the model years noted in Table 1 of this section, 
all of the subparts of this part, except subpart I, apply as specified 
in 40 CFR part 60, subpart IIII, to freshly manufactured stationary 
compression-ignition engines subject to the standards of 40 CFR part 60, 
subpart IIII, that have a per-cylinder displacement at or above 10 
liters and below 30 liters per cylinder. Such engines are considered 
Category 2 engines for purposes of this part 1042.



Sec. 1042.2  Who is responsible for compliance?

    The regulations in this part 1042 contain provisions that affect 
both engine manufacturers and others. However, the requirements of this 
part, other than those of subpart I of this part, are generally 
addressed to the engine manufacturer for freshly manufactured marine 
engines or other certificate holders. The term ``you'' generally means 
the engine manufacturer, as defined in Sec. 1042.901, especially for 
issues related to certification (including production-line testing, 
reporting, etc.).

[75 FR 22995, Apr. 30, 2010]



Sec. 1042.5  Exclusions.

    This part does not apply to the following marine engines:
    (a) Foreign vessels. The requirements and prohibitions of this part 
do not apply to engines installed on foreign vessels, as defined in 
Sec. 1042.901. Note however, that the requirements and prohibitions of 
this part do apply to engines installed on any formerly foreign vessels 
that are reflagged as U.S.-flagged vessels.
    (b) Hobby engines. Engines installed in reduced-scale models of 
vessels that are not capable of transporting a person are not subject to 
the provisions of this part 1042.
    (c) Recreational gas turbine engines. The requirements and 
prohibitions of this part do not apply to gas turbine engines installed 
on recreational vessels, as defined in Sec. 1042.901.

[73 37243, June 30, 2008, as amended at 73 FR 59192, Oct. 8, 2008; 75 FR 
22995, Apr. 30, 2010]



Sec. 1042.10  Organization of this part.

    This part 1042 is divided into the following subparts:
    (a) Subpart A of this part defines the applicability of this part 
1042 and gives an overview of regulatory requirements.
    (b) Subpart B of this part describes the emission standards and 
other requirements that must be met to certify engines under this part. 
Note that Sec. 1042.145 discusses certain interim requirements and 
compliance provisions that apply only for a limited time.
    (c) Subpart C of this part describes how to apply for a certificate 
of conformity.
    (d) Subpart D of this part describes general provisions for testing 
production-line engines.
    (e) Subpart E of this part describes general provisions for testing 
in-use engines.
    (f) Subpart F of this part and 40 CFR 1065 describe how to test your 
engines.
    (g) Subpart G of this part and 40 CFR part 1068 describe 
requirements, prohibitions, and other provisions that apply to engine 
manufacturers, vessel manufacturers, owners, operators, rebuilders, and 
all others.
    (h) Subpart H of this part describes how you may generate and use 
emission credits to certify your engines.
    (i) Subpart I of this part describes how these regulations apply for 
remanufactured engines.
    (j) Subpart J of this part contains definitions and other reference 
information.



Sec. 1042.15  Do any other regulation parts apply to me?

    (a) Part 1043 of this chapter describes requirements related to 
international pollution prevention that apply for some of the engines 
subject to this part.
    (b) The evaporative emission requirements of part 1060 of this 
chapter apply

[[Page 172]]

to vessels that include installed engines fueled with a volatile liquid 
fuel as specified in Sec. 1042.107. (Note: Conventional diesel fuel is 
not considered to be a volatile liquid fuel.)
    (c) Part 1065 of this chapter describes procedures and equipment 
specifications for testing engines to measure exhaust emissions. Subpart 
F of this part 1042 describes how to apply the provisions of part 1065 
of this chapter to determine whether engines meet the exhaust emission 
standards in this part.
    (d) The requirements and prohibitions of part 1068 of this chapter 
apply to everyone, including anyone who manufactures, imports, installs, 
owns, operates, or rebuilds any of the engines subject to this part 
1042, or vessels containing these engines. Part 1068 of this chapter 
describes general provisions, including these seven areas:
    (1) Prohibited acts and penalties for engine manufacturers, vessel 
manufacturers, and others.
    (2) Rebuilding and other aftermarket changes.
    (3) Exclusions and exemptions for certain engines.
    (4) Importing engines.
    (5) Selective enforcement audits of your production.
    (6) Defect reporting and recall.
    (7) Procedures for hearings.
    (e) Other parts of this chapter apply if referenced in this part.

[75 FR 22995, Apr. 30, 2010]



Sec. 1042.30  Submission of information.

    (a) This part includes various requirements to record data or other 
information. Refer to Sec. 1042.925 and 40 CFR 1068.25 regarding 
recordkeeping requirements. Unless we specify otherwise, store these 
records in any format and on any media and keep them readily available 
for one year after you send an associated application for certification, 
or one year after you generate the data if they do not support an 
application for certification. You must promptly send us organized, 
written records in English if we ask for them. We may review them at any 
time.
    (b) The regulations in Sec. 1042.255 and 40 CFR 1068.101 describe 
your obligation to report truthful and complete information and the 
consequences of failing to meet this obligation. This includes 
information not related to certification.
    (c) Send all reports and requests for approval to the Designated 
Compliance Officer (see Sec. 1042.901).
    (d) Any written information we require you to send to or receive 
from another company is deemed to be a required record under this 
section. Such records are also deemed to be submissions to EPA. We may 
require you to send us these records whether or not you are a 
certificate holder.

[75 FR 22996, Apr. 30, 2010]



          Subpart B_Emission Standards and Related Requirements



Sec. 1042.101  Exhaust emission standards for Category 1 engines and Category 2 engines.

    (a) Duty-cycle standards. Exhaust emissions from your engines may 
not exceed emission standards, as follows:
    (1) Measure emissions using the test procedures described in subpart 
F of this part.
    (2) The following CO emission standards in this paragraph (a)(2) 
apply starting with the applicable model year identified in Sec. 
1042.1:
    (i) 8.0 g/kW-hr for engines below 8 kW.
    (ii) 6.6 g/kW-hr for engines at or above 8 kW and below 19 kW.
    (iii) 5.5 g/kW-hr for engines at or above 19 kW and below 37 kW.
    (iv) 5.0 g/kW-hr for engines at or above 37 kW.
    (3) Except as described in paragraphs (a)(4) and (5) of this 
section, the Tier 3 standards for PM and NOX+HC emissions are 
described in the following tables:

[[Page 173]]

[GRAPHIC] [TIFF OMITTED] TR30AP10.104


              Table 2 to Sec.  1042.101--Tier 3 Standards for Category 2 Engines Below 3700 kW \a\
----------------------------------------------------------------------------------------------------------------
                                                                                                  NOX+HC  (g/kW-
         Displacement (L/cyl)             Maximum engine power      Model year     PM  (g/kW-hr)        hr)
----------------------------------------------------------------------------------------------------------------
7.0 <= disp. < 15.0...................  kW < 2000...............           2013+            0.14             6.2
                                        2000 <= kW < 3700.......           2013+            0.14           b 7.8
15.0 <= disp. < 20.0 c................  kW < 2000...............           2014+            0.34             7.0
20.0 <= disp. < 25.0 c................  kW < 2000...............           2014+            0.27             9.8
25.0 <= disp. < 30.0 c................  kW < 2000...............           2014+            0.27            11.0
----------------------------------------------------------------------------------------------------------------
a No Tier 3 standards apply for Category 2 engines at or above 3700 kW. See Sec.  1042.1(c) and paragraph
  (a)(7) of this section for the standards that apply for these engines.
b For engines subject to the 7.8 g/kW-hr NOX+HC standard, FELs may not be higher than the Tier 1 NOX standard
  specified in Appendix I of this part.

[[Page 174]]

 
c No Tier 3 standards apply for Category 2 engines with per-cylinder displacement above 15.0 liters if maximum
  engine power is at or above 2000 kW. See Sec.  1042.1(c) and paragraph (a)(7) of this section for the
  standards that apply for these engines.

    (4) For Tier 3 engines at or above 19 kW and below 75 kW with 
displacement below 0.9 L/cyl, you may alternatively certify some or all 
of your engine families to a PM emission standard of 0.20 g/kW-hr and a 
NOX+HC emission standard of 5.8 g/kW-hr for 2014 and later 
model years.
    (5) Starting with the 2014 model year, recreational marine engines 
at or above 3700 kW (with any displacement) must be certified under this 
part 1042 to the Tier 3 standards specified in this section for 3.5 to 
7.0 L/cyl recreational marine engines.
    (6) Interim Tier 4 PM standards apply for 2014 and 2015 model year 
engines between 2000 and 3700 kW as specified in this paragraph (a)(6). 
These engines are considered to be Tier 4 engines.
    (i) For Category 1 engines, the Tier 3 PM standards from Table 1 to 
this section continue to apply. PM FELs for these engines may not be 
higher than the applicable Tier 2 PM standards specified in Appendix I 
of this part.
    (ii) For Category 2 engines with per-cylinder displacement below 
15.0 liters, the Tier 3 PM standards from Table 2 to this section 
continue to apply. PM FELs for these engines may not be higher than 0.27 
g/kW-hr.
    (iii) For Category 2 engines with per-cylinder displacement at or 
above 15.0 liters, the PM standard is 0.34 g/kW-hr for engines at or 
above 2000 kW and below 3300 kW, and 0.27 g/kW-hr for engines at or 
above 3300 kW and below 3700 kW. PM FELs for these engines may not be 
higher than 0.50 g/kW-hr.
    (7) Except as described in paragraph (a)(8) of this section, the 
Tier 4 standards for PM, NOX, and HC emissions are described 
in the following table:

   Table 3 to Sec.  1042.101--Tier 4 Standards for Category 2 and Commercial Category 1 Engines Above 600 kW
----------------------------------------------------------------------------------------------------------------
                                                                            PM  (g/kW-  NOX  (g/kW-   HC  (g/kW-
        Maximum engine power           Displacement  (L/cyl)   Model year      hr)          hr)          hr)
----------------------------------------------------------------------------------------------------------------
600 <= kW < 1400....................  all...................        2017+         0.04          1.8         0.19
1400 <= kW < 2000...................  all...................        2016+         0.04          1.8         0.19
2000 <= kW < 3700 a.................  all...................        2014+         0.04          1.8         0.19
kW = 3700................  disp. <15.0...........    2014-2015         0.12          1.8         0.19
                                      15.0 <= disp.< 30.0...    2014-2015         0.25          1.8         0.19
                                      all...................        2016+         0.06          1.8         0.19
----------------------------------------------------------------------------------------------------------------
a See paragraph (a)(6) of this section for interim PM standards that apply for model years 2014 and 2015 for
  engines between 2000 and 3700 kW. The Tier 4 NOX FEL cap for engines at or above 2000 kW and below 3700 kW is
  7.0 g/kW-hr. Starting in the 2016 model year, the Tier 4 PM FEL cap for engines at or above 2000 kW and below
  3700 kW is 0.34 g/kW-hr.

    (8) The following optional provisions apply for complying with the 
Tier 3 and Tier 4 standards specified in paragraphs (a)(3) and (6) of 
this section:
    (i) You may use NOX credits accumulated through the ABT 
program to certify Tier 4 engines to a NOX+HC emission 
standard of 1.9 g/kW-hr instead of the NOX and HC standards 
that would otherwise apply by certifying your family to a 
NOX+HC FEL. Calculate the NOX credits needed as 
specified in subpart H of this part using the NOX+HC emission 
standard and FEL in the calculation instead of the otherwise applicable 
NOX standard and FEL. You may not generate credits relative 
to the alternate standard or certify to the standard without using 
credits.
    (ii) For engines below 1000 kW, you may delay complying with the 
Tier 4 standards in the 2017 model year for up to nine months, but you 
must comply no later than October 1, 2017.
    (iii) For engines at or above 3700 kW, you may delay complying with 
the Tier 4 standards in the 2016 model year for up to twelve months, but 
you must comply no later than December 31, 2016.
    (iv) For Category 2 engines at or above 1400 kW, you may 
alternatively comply with the Tier 3 and Tier 4 standards specified in 
Table 4 of this section instead of the NOX, HC, 
NOX+HC, and PM standards specified in paragraphs (a)(3) and 
(6) of this section.

[[Page 175]]

The CO standards specified in paragraph (a)(2) of this section apply 
without regard to whether you choose this option. If you choose this 
option, you must do so for all engines at or above 1400 kW in the same 
displacement category (that is, 7-15, 15-20, 20-25, or 25-30 liters per 
cylinder) in model years 2012 through 2015.

   Table 4 to Sec.  1042.101--Optional Tier 3 and Tier 4 Standards for Category 2 Engines at or Above 1400 kW
----------------------------------------------------------------------------------------------------------------
                                                                            PM  (g/kW-  NOX  (g/kW-   HC  (g/kW-
                Tier                   Maximum engine power    Model year      hr)          hr)          hr)
----------------------------------------------------------------------------------------------------------------
Tier 3..............................  kW = 1400..    2012-2014         0.14         7.8 NOX+HC
Tier 4..............................  1400 <= kW < 3700.....         2015         0.04          1.8         0.19
                                      kW = 3700..         2015         0.06          1.8         0.19
----------------------------------------------------------------------------------------------------------------

    (b) Averaging, banking, and trading. You may generate or use 
emission credits under the averaging, banking, and trading (ABT) program 
as described in subpart H of this part for demonstrating compliance with 
NOX, NOX+HC, and PM emission standards for 
Category 1 and Category 2 engines. You may also use NOX or 
NOX+HC emission credits to comply with the alternate 
NOX+HC standard in paragraph (a)(8)(i) of this section. 
Generating or using emission credits requires that you specify a family 
emission limit (FEL) for each pollutant you include in the ABT program 
for each engine family. These FELs serve as the emission standards for 
the engine family with respect to all required testing instead of the 
standards specified in paragraph (a) of this section. The FELs determine 
the not-to-exceed standards for your engine family, as specified in 
paragraph (c) of this section. Unless otherwise specified, the following 
FEL caps apply:
    (1) FELs for Tier 3 engines may not be higher than the applicable 
Tier 2 standards specified in Appendix I of this part.
    (2) FELs for Tier 4 engines may not be higher than the applicable 
Tier 3 standards specified in paragraph (a)(3) of this section.
    (c) Not-to-exceed standards. Except as noted in Sec. 1042.145(e), 
exhaust emissions from all engines subject to the requirements of this 
part may not exceed the not-to-exceed (NTE) standards as follows:
    (1) Use the following equation to determine the NTE standards:
    (i) NTE standard for each pollutant = STD x M.

Where:

STD = The standard specified for that pollutant in this section if you 
certify without using ABT for that pollutant; or the FEL for that 
pollutant if you certify using ABT.
M = The NTE multiplier for that pollutant.

    (ii) Round each NTE standard to the same number of decimal places as 
the emission standard.
    (2) Determine the applicable NTE zone and subzones as described in 
Sec. 1042.515. Determine NTE multipliers for specific zones and 
subzones and pollutants as follows:
    (i) For commercial marine engines certified using the duty cycle 
specified in Sec. 1042.505(b)(1), except for variable-speed propulsion 
marine engines used with controllable-pitch propellers or with 
electrically coupled propellers, apply the following NTE multipliers:
    (A) Subzone 1: 1.2 for Tier 3 NOX+HC standards.
    (B) Subzone 1: 1.5 for Tier 4 standards and Tier 3 PM and CO 
standards.
    (C) Subzone 2: 1.5 for NOX+HC standards.
    (D) Subzone 2: 1.9 for PM and CO standards.
    (ii) For recreational marine engines certified using the duty cycle 
specified in Sec. 1042.505(b)(2), except for variable-speed marine 
engines used with controllable-pitch propellers or with electrically 
coupled propellers, apply the following NTE multipliers:
    (A) Subzone 1: 1.2 for Tier 3 NOX+HC standards.
    (B) Subzone 1: 1.5 for Tier 4 standards and Tier 3 PM and CO 
standards.
    (C) Subzones 2 and 3: 1.5 for NOX+HC standards.
    (D) Subzones 2 and 3: 1.9 for PM and CO standards.

[[Page 176]]

    (iii) For variable-speed marine engines used with controllable-pitch 
propellers or with electrically coupled propellers that are certified 
using the duty cycle specified in Sec. 1042.505(b)(1), (2), or (3), 
apply the following NTE multipliers:
    (A) Subzone 1: 1.2 for Tier 3 NOX+HC standards.
    (B) Subzone 1: 1.5 for Tier 4 standards and Tier 3 PM and CO 
standards.
    (C) Subzone 2: 1.5 for NOX+HC standards.
    (D) Subzone 2: 1.9 for PM and CO standards. However, there is no NTE 
standard in Subzone 2b for PM emissions if the engine family's 
applicable standard for PM is at or above 0.07 g/kW-hr.
    (iv) For constant-speed engines certified using a duty cycle 
specified in Sec. 1042.505(b)(3) or (4), apply the following NTE 
multipliers:
    (A) Subzone 1: 1.2 for Tier 3 NOX+HC standards.
    (B) Subzone 1: 1.5 for Tier 4 standards and Tier 3 PM and CO 
standards.
    (C) Subzone 2: 1.5 for NOX+HC standards.
    (D) Subzone 2: 1.9 for PM and CO standards. However, there is no NTE 
standard for PM emissions if the engine family's applicable standard for 
PM is at or above 0.07 g/kW-hr.
    (v) For variable-speed auxiliary marine engines certified using the 
duty cycle specified in Sec. 1042.505(b)(5)(ii) or (iii):
    (A) Subzone 1: 1.2 for Tier 3 NOX+HC standards.
    (B) Subzone 1: 1.5 for Tier 4 standards and Tier 3 PM and CO 
standards.
    (C) Subzone 2: 1.2 for Tier 3 NOX+HC standards.
    (D) Subzone 2: 1.5 for Tier 4 standards and Tier 3 PM and CO 
standards. However, there is no NTE standard for PM emissions if the 
engine family's applicable standard for PM is at or above 0.07 g/kW-hr.
    (3) The NTE standards apply to your engines whenever they operate 
within the NTE zone for an NTE sampling period of at least thirty 
seconds, during which only a single operator demand set point may be 
selected. Engine operation during a change in operator demand is 
excluded from any NTE sampling period. There is no maximum NTE sampling 
period.
    (4) Collect emission data for determining compliance with the NTE 
standards using the procedures described in subpart F of this part.
    (5) You may ask us to accept as compliant an engine that does not 
fully meet specific requirements under the applicable NTE standards 
where such deficiencies are necessary for safety.
    (d) Fuel types. The exhaust emission standards in this section apply 
for engines using the fuel type on which the engines in the engine 
family are designed to operate.
    (1) You must meet the numerical emission standards for hydrocarbons 
in this section based on the following types of hydrocarbon emissions 
for engines powered by the following fuels:
    (i) Alcohol-fueled engines must comply with Tier 3 HC standards 
based on THCE emissions and with Tier 4 standards based on NMHCE 
emissions.
    (ii) Natural gas-fueled engines must comply with HC standards based 
on NMHC emissions.
    (iii) Diesel-fueled and all other engines not described in paragraph 
(d)(1)(i) or (ii) of this section must comply with Tier 3 HC standards 
based on THC emissions and with Tier 4 standards based on NMHC 
emissions.
    (2) Tier 3 and later engines must comply with the exhaust emission 
standards when tested using test fuels containing 15 ppm or less sulfur 
(ultra low-sulfur diesel fuel). Manufacturers may use low-sulfur diesel 
fuel (without request) to certify an engine otherwise requiring an ultra 
low-sulfur test fuel; however, emissions may not be corrected to account 
for the effects of using higher sulfur fuel.
    (3) Engines designed to operate using residual fuel must comply with 
the standards and requirements of this part when operated using residual 
fuel in addition to complying with the requirements of this part when 
operated using diesel fuel.
    (e) Useful life. Your engines must meet the exhaust emission 
standards of this section over their full useful life, expressed as a 
period in years or hours of engine operation, whichever comes first.

[[Page 177]]

    (1) The minimum useful life values are as follows, except as 
specified by paragraph (e)(2) or (3) of this section:
    (i) 10 years or 1,000 hours of operation for recreational Category 1 
engines
    (ii) 5 years or 3,000 hours of operation for commercial engines 
below 19 kW.
    (iii) 7 years or 5,000 hours of operation for commercial engines at 
or above 19 kW and below 37kW.
    (iv) 10 years or 10,000 hours of operation for commercial Category 1 
engines at or above 37 kW.
    (v) 10 years or 20,000 hours of operation for Category 2 engines.
    (2) Specify a longer useful life in hours for an engine family under 
either of two conditions:
    (i) If you design, advertise, or market your engine to operate 
longer than the minimum useful life (your recommended hours until 
rebuild indicates a longer design life).
    (ii) If your basic mechanical warranty is longer than the minimum 
useful life.
    (3) You may request in your application for certification that we 
approve a shorter useful life for an engine family. We may approve a 
shorter useful life, in hours of engine operation but not in years, if 
we determine that these engines will rarely operate longer than the 
shorter useful life. If engines identical to those in the engine family 
have already been produced and are in use, your demonstration must 
include documentation from such in-use engines. In other cases, your 
demonstration must include an engineering analysis of information 
equivalent to such in-use data, such as data from research engines or 
similar engine models that are already in production. Your demonstration 
must also include any overhaul interval that you recommend, any 
mechanical warranty that you offer for the engine or its components, and 
any relevant customer design specifications. Your demonstration may 
include any other relevant information. The useful life value may not be 
shorter than any of the following:
    (i) 1,000 hours of operation.
    (ii) Your recommended overhaul interval.
    (iii) Your mechanical warranty for the engine.
    (f) Applicability for testing. The duty-cycle emission standards in 
this subpart apply to all testing performed according to the procedures 
in Sec. 1042.505, including certification, production-line, and in-use 
testing. The not-to-exceed standards apply for all testing performed 
according to the procedures of subpart F of this part.

[73 37243, June 30, 2008, as amended at 73 FR 59192, Oct. 8, 2008; 74 FR 
8425, Feb. 24, 2009; 75 FR 22996, Apr. 30, 2010]



Sec. 1042.104  Exhaust emission standards for Category 3 engines.

    (a) Duty-cycle standards. Exhaust emissions from your engines may 
not exceed emission standards, as follows:
    (1) Measure emissions using the test procedures described in subpart 
F of this part. Note that while no PM standards apply for Category 3 
engines, PM emissions must be measured for certification testing and 
reported under Sec. 1042.205. Note also that you are not required to 
measure PM emissions for other testing.
    (2) NOX standards apply based on the engine's model year 
and maximum in-use engine speed as shown in the following table:

               Table 1 to Sec.  1042.104--NOX Emission Standards for Category 3 Engines (g/kW-hr)
----------------------------------------------------------------------------------------------------------------
                                                                       Maximum in-use engine speed
                                                        --------------------------------------------------------
        Emission standards              Model year        Less than                                   Over 2000
                                                           130 RPM          130-2000  RPM \a\            RPM
----------------------------------------------------------------------------------------------------------------
Tier 1...........................  2004-2010 \b\.......         17.0  45.0[middot]n (-0.20)                  9.8
Tier 2...........................  2011-2015...........         14.4  44.0[middot]n (-0.23)                  7.7
Tier 3...........................  2016 and later......          3.4  9.0[middot]n (-0.20)                   2.0
----------------------------------------------------------------------------------------------------------------
\a\ Applicable standards are calculated from n (maximum in-use engine speed, in RPM, as specified in Sec.
  1042.140). Round the standards to one decimal place.
\b\ Tier 1 NOX standards apply as specified in 40 CFR part 94 for engines originally manufactured in model years
  2004 through 2010. They are shown here only for reference.


[[Page 178]]

    (3) The HC standard for Tier 2 and later engines is 2.0 g/kW-hr. 
This standard applies as follows:
    (i) Alcohol-fueled engines must comply with HC standards based on 
THCE emissions.
    (ii) Natural gas-fueled engines must comply with HC standards based 
on NMHC emissions.
    (iii) Diesel-fueled and all other engines not described in paragraph 
(a)(3)(i) or (ii) of this section must comply with HC standards based on 
THC emissions.
    (4) The CO standard for Tier 2 and later engines is 5.0 g/kW-hr.
    (b) Averaging, banking, and trading. Category 3 engines are not 
eligible for participation in the averaging, banking, and trading (ABT) 
program as described in subpart H of this part.
    (c) Mode caps. Measured NOX emissions may not exceed the 
cap specified in this paragraph (c) for any applicable duty-cycle test 
modes with power greater than 10 percent maximum engine power. Calculate 
the mode cap by multiplying the applicable NOX standard by 
1.5 and rounding to the nearest 0.1 g/kW-hr. Note that mode caps do not 
apply for pollutants other than NOX and do not apply for any 
modes of operation outside of the applicable duty cycles in Sec. 
1042.505. Category 3 engines are not subject to not-to-exceed standards.
    (d) Useful life. Your engines must meet the exhaust emission 
standards of this section over their full useful life, expressed as a 
period in years or hours of engine operation, whichever comes first.
    (1) The minimum useful life value is 3 years or 10,000 hours of 
operation.
    (2) Specify a longer useful life in hours for an engine family under 
either of two conditions:
    (i) If you design, advertise, or market your engine to operate 
longer than the minimum useful life (your recommended hours until 
rebuild indicates a longer design life).
    (ii) If your basic mechanical warranty is longer than the minimum 
useful life.
    (e) Applicability for testing. The duty-cycle emission standards in 
this section apply to all testing performed according to the procedures 
in Sec. 1042.505, including certification, production-line, and in-use 
testing. See paragraph (g) of this section for standards that apply for 
certain other test procedures, such as some production-line testing.
    (f) Domestic engines. Engines installed on vessels excluded from 40 
CFR part 1043 because they operate only domestically may not be 
certified for use with residual fuels.
    (g) Alternate installed-engine standards. NOX emissions 
may not exceed the standard specified in this paragraph (g) for test of 
engines installed on vessels when you are unable to operate the engine 
at the test points for the specified duty cycle, and you approximate 
these points consistent with the specifications of section 6 of Appendix 
8 to the NOX Technical Code (incorporated by reference in 
Sec. 1042.910). Calculate the alternate installed-engine standard by 
multiplying the applicable NOX standard by 1.1 and rounding 
to the nearest 0.1 g/kW-hr.

[75 FR 22997, Apr. 30, 2010]



Sec. 1042.107  Evaporative emission standards.

    (a) There are no evaporative emission standards for diesel-fueled 
engines, or engines using other nonvolatile or nonliquid fuels (for 
example, natural gas).
    (b) If an engine uses a volatile liquid fuel, such as methanol, the 
engine's fuel system and the vessel in which the engine is installed 
must meet the evaporative emission requirements of 40 CFR part 1045 that 
apply with respect to spark-ignition engines. Manufacturers subject to 
evaporative emission standards must meet the requirements of 40 CFR 
1045.112 as described in 40 CFR part 1060 and do all the following 
things in the application for certification:
    (1) Describe how evaporative emissions are controlled.
    (2) Present test data to show that fuel systems and vessels meet the 
evaporative emission standards we specify in this section if you do not 
use design-based certification under 40 CFR 1060.240. Show these figures 
before and after applying deterioration factors, where applicable.

[73 FR 59193, Oct. 8, 2008]

[[Page 179]]



Sec. 1042.110  Recording reductant use and other diagnostic functions.

    (a) Engines equipped with SCR systems using a reductant other than 
the engine's fuel must meet the following requirements:
    (1) The diagnostic system must monitor reductant quality and tank 
levels and alert operators to the need to refill the reductant tank 
before it is empty, or to replace the reductant if it does not meet your 
concentration specifications. Unless we approve other alerts, use a 
malfunction-indicator light (MIL) and an audible alarm. You do not need 
to separately monitor reductant quality if you include an exhaust 
NOX sensor (or other sensor) that allows you to determine 
inadequate reductant quality. However, tank level must be monitored in 
all cases.
    (2) The onboard computer log must record in nonvolatile computer 
memory all incidents of engine operation with inadequate reductant 
injection or reductant quality. Use good engineering judgment to ensure 
that the operator can readily access the information to submit the 
report required by Sec. 1042.660. For example, you may meet this 
requirement by documenting the incident in a text file that can be 
downloaded or printed by the operator.
    (3) SCR systems must also conform to the provisions of paragraph (d) 
of this section if they are equipped with on-off controls as allowed 
under Sec. 1042.115(g).
    (b) If you determine your emission controls have failure modes that 
may reasonably be expected to affect safety, equip the engines with 
diagnostic features that will alert the operator to such failures. Use 
good engineering judgment to alert the operator before the failure 
occurs.
    (c) You may equip your engine with other diagnostic features. If you 
do, they must be designed to allow us to read and interpret the codes. 
Note that Sec. Sec. 1042.115 and 1042.205 require that you provide us 
any information needed to read, record, and interpret all the 
information broadcast by an engine's onboard computers and electronic 
control units.
    (d) For Category 3 engines equipped with on-off NOX 
controls (as allowed by Sec. 1042.115(g)), you must also equip your 
engine to continuously monitor NOX concentrations in the 
exhaust. See Sec. 1042.650 to determine if this requirement applies for 
a given Category 1 or Category 2 engine. Use good engineering judgment 
to alert operators if measured NOX concentrations indicate 
malfunctioning emission controls. Record any such operation in 
nonvolatile computer memory. You are not required to monitor 
NOX concentrations during operation for which the emission 
controls may be disabled under Sec. 1042.115(g). For the purpose of 
this paragraph (d), ``malfunctioning emission controls'' means any 
condition in which the measured NOX concentration exceeds the 
highest value expected when the engine is in compliance with the 
installed engine standard of Sec. 1042.104(g). Use good engineering 
judgment to determine these expected values during production-line 
testing of the engine using linear interpolation between test points and 
accounting for the degree to which the cycle-weighted emissions of the 
engine are below the standard. You may also use additional intermediate 
test points measured during the production-line test. Note that the 
provisions of paragraph (a) of this section also apply for SCR systems 
covered by this paragraph (d). For engines subject to both the 
provisions of paragraph (a) of this section and this paragraph (d), use 
good engineering judgment to integrate diagnostic features to comply 
with both paragraphs.

[73 FR 37243, June 30, 2008, as amended at 75 FR 22998, Apr. 30, 2010]



Sec. 1042.115  Other requirements.

    Engines that are required to comply with the emission standards of 
this part must meet the following requirements:
    (a) Crankcase emissions. Crankcase emissions may not be discharged 
directly into the ambient atmosphere from any engine throughout its 
useful life, except as follows:
    (1) Engines may discharge crankcase emissions to the ambient 
atmosphere if the emissions are added to the exhaust emissions (either 
physically or mathematically) during all emission testing. If you take 
advantage of this exception, you must do both of the following things:

[[Page 180]]

    (i) Manufacture the engines so that all crankcase emissions can be 
routed into the applicable sampling systems specified in 40 CFR part 
1065.
    (ii) Account for deterioration in crankcase emissions when 
determining exhaust deterioration factors.
    (2) For purposes of this paragraph (a), crankcase emissions that are 
routed to the exhaust upstream of exhaust aftertreatment during all 
operation are not considered to be discharged directly into the ambient 
atmosphere.
    (b) Torque broadcasting. Electronically controlled engines must 
broadcast their speed and output shaft torque (in newton-meters). 
Engines may alternatively broadcast a surrogate value for determining 
torque. Engines must broadcast engine parameters such that they can be 
read with a remote device, or broadcast them directly to their 
controller area networks. This information is necessary for testing 
engines in the field (see Sec. 1042.515).
    (c) EPA access to broadcast information. If we request it, you must 
provide us any hardware or tools we would need to readily read, 
interpret, and record all information broadcast by an engine's on-board 
computers and electronic control modules. If you broadcast a surrogate 
parameter for torque values, you must provide us what we need to convert 
these into torque units. We will not ask for hardware or tools if they 
are readily available commercially.
    (d) Adjustable parameters. An operating parameter is not considered 
adjustable if you permanently seal it or if it is not normally 
accessible using ordinary tools. The following provisions apply for 
adjustable parameters:
    (1) Category 1 engines that have adjustable parameters must meet all 
the requirements of this part for any adjustment in the physically 
adjustable range. We may require that you set adjustable parameters to 
any specification within the adjustable range during any testing, 
including certification testing, selective enforcement auditing, or in-
use testing.
    (2) Category 2 and Category 3 engines that have adjustable 
parameters must meet all the requirements of this part for any 
adjustment in the specified adjustable range. You must specify in your 
application for certification the adjustable range of each adjustable 
parameter on a new engine to--
    (i) Ensure that safe engine operating characteristics are available 
within that range, as required by section 202(a)(4) of the Clean Air Act 
(42 U.S.C. 7521(a)(4)), taking into consideration the production 
tolerances.
    (ii) Limit the physical range of adjustability to the maximum extent 
practicable to the range that is necessary for proper operation of the 
engine.
    (e) Prohibited controls. You may not design your engines with 
emission-control devices, systems, or elements of design that cause or 
contribute to an unreasonable risk to public health, welfare, or safety 
while operating. For example, this would apply if the engine emits a 
noxious or toxic substance it would otherwise not emit, that contributes 
to such an unreasonable risk.
    (f) Defeat devices. You may not equip your engines with a defeat 
device. A defeat device is an auxiliary emission control device that 
reduces the effectiveness of emission controls under conditions that the 
engine may reasonably be expected to encounter during normal operation 
and use. (Note that this means emission control for operation outside of 
and between the official test modes is generally expected to be similar 
to emission control demonstrated at the test modes.) This does not apply 
to auxiliary emission control devices you identify in your application 
for certification if any of the following is true:
    (1) The conditions of concern were substantially included in the 
applicable duty-cycle test procedures described in subpart F of this 
part (the portion during which emissions are measured).
    (2) You show your design is necessary to prevent engine (or vessel) 
damage or accidents.
    (3) The reduced effectiveness applies only to starting the engine.
    (4) The engine is a Category 3 engine and the AECD conforms to the 
requirements of paragraph (g) of this section. See Sec. 1042.650 to 
determine if this allowance applies for a given Category 1 or Category 2 
engine.

[[Page 181]]

    (g) On-off controls for Category 3 engines. Manufacturers may equip 
Category 3 engines with features that disable Tier 3 NOX 
emission controls subject to the provisions of this paragraph (g). See 
Sec. 1042.650 to determine if this allowance applies for a given 
Category 1 or Category 2 engine. Where this paragraph (g) applies for a 
Category 1 or Category 2 engine, read ``Tier 2'' to mean ``Tier 3'' and 
read ``Tier 3'' to mean ``Tier 4''.
    (1) Features that disable Tier 3 emission controls are considered to 
be AECDs whether or not they meet the definition of an AECD. For 
example, manually operated on-off features are AECDs under this 
paragraph (g). The features must be identified in your application for 
certification as AECDs. For purposes of this paragraph (g), the term 
``features that disable Tier 3 emission controls'' includes (but is not 
limited to) any combination of the following that cause the engine's 
emissions to exceed any Tier 3 emission standard:
    (i) Bypassing of exhaust aftertreatment.
    (ii) Reducing or eliminating flow of reductant to an SCR system.
    (iii) Modulating engine calibration in a manner that increases 
engine-out emissions of a regulated pollutant.
    (2) You must demonstrate that the AECD will not disable emission 
controls while operating in areas where emissions could reasonably be 
expected to adversely affect U.S. air quality. If an ECA has been 
established for U.S. waters, this means you must demonstrate that the 
AECD will not disable emission control while operating in waters within 
the ECA or any ECA associated area. (Note: See the regulations in 40 CFR 
part 1043 for requirements related to operation in ECAs, including 
foreign ECAs.) Compliance with this paragraph will generally require 
that the AECD operation be based on Global Positioning System (GPS) 
inputs. We may consider any relevant information to determine whether 
your AECD conforms to this paragraph (g).
    (3) The onboard computer log must record in nonvolatile computer 
memory all incidents of engine operation with the Tier 3 emission 
controls disabled.
    (4) The engine must comply fully with the Tier 2 standards when the 
Tier 3 emission controls are disabled.

[73 37243, June 30, 2008, as amended at 73 FR 59193, Oct. 8, 2008; 75 FR 
22998, Apr. 30, 2010]



Sec. 1042.120  Emission-related warranty requirements.

    (a) General requirements. You must warrant to the ultimate purchaser 
and each subsequent purchaser that the new engine, including all parts 
of its emission control system, meets two conditions:
    (1) It is designed, built, and equipped so it conforms at the time 
of sale to the ultimate purchaser with the requirements of this part.
    (2) It is free from defects in materials and workmanship that may 
keep it from meeting these requirements.
    (b) Warranty period. Your emission-related warranty must be valid 
for at least as long as the minimum warranty periods listed in this 
paragraph (b) in hours of operation and years, whichever comes first. 
You may offer an emission-related warranty more generous than we 
require. The emission-related warranty for the engine may not be shorter 
than any published warranty you offer without charge for the engine. 
Similarly, the emission-related warranty for any component may not be 
shorter than any published warranty you offer without charge for that 
component. If an engine has no hour meter, we base the warranty periods 
in this paragraph (b) only on the engine's age (in years).
    The warranty period begins when the engine is placed into service. 
The following minimum warranty periods apply:
    (1) For Category 1 and Category 2 engines, your emission-related 
warranty must be valid for at least 50 percent of the engine's useful 
life in hours of operation or a number of years equal to at least 50 
percent of the useful life in years, whichever comes first.
    (2) For Category 3 engines, your emission-related warranty must be 
valid throughout the engine's full useful life as specified in Sec. 
1042.104(d).

[[Page 182]]

    (c) Components covered. The emission-related warranty covers all 
components whose failure would increase an engine's emissions of any 
regulated pollutant, including components listed in 40 CFR part 1068, 
Appendix I, and components from any other system you develop to control 
emissions. The emission-related warranty for freshly manufactured marine 
engines covers these components even if another company produces the 
component. Your emission-related warranty does not need to cover 
components whose failure would not increase an engine's emissions of any 
regulated pollutant. For remanufactured engines, your emission-related 
warranty is required to cover only those parts that you supply or those 
parts for which you specify allowable part manufacturers. It does not 
need to cover used parts that are not replaced during the remanufacture.
    (d) Limited applicability. You may deny warranty claims under this 
section if the operator caused the problem through improper maintenance 
or use, as described in 40 CFR 1068.115.
    (e) Owners manual. Describe in the owners manual the emission-
related warranty provisions from this section that apply to the engine.

[73 FR 37243, June 30, 2008, as amended at 75 FR 22999, Apr. 30, 2010]



Sec. 1042.125  Maintenance instructions.

    Give the ultimate purchaser of each new engine written instructions 
for properly maintaining and using the engine, including the emission 
control system, as described in this section. The maintenance 
instructions also apply to service accumulation on your emission-data 
engines as described in Sec. 1042.245 and in 40 CFR part 1065. The 
restrictions specified in paragraphs (a) through (e) of this section 
related to allowable maintenance apply only to Category 1 and Category 2 
engines. Manufacturers may specify any maintenance for Category 3 
engines.
    (a) Critical emission-related maintenance. Critical emission-related 
maintenance includes any adjustment, cleaning, repair, or replacement of 
critical emission-related components. This may also include additional 
emission-related maintenance that you determine is critical if we 
approve it in advance. You may schedule critical emission-related 
maintenance on these components if you meet the following conditions:
    (1) You demonstrate that the maintenance is reasonably likely to be 
done at the recommended intervals on in-use engines. We will accept 
scheduled maintenance as reasonably likely to occur if you satisfy any 
of the following conditions:
    (i) You present data showing that any lack of maintenance that 
increases emissions also unacceptably degrades the engine's performance.
    (ii) You present survey data showing that at least 80 percent of 
engines in the field get the maintenance you specify at the recommended 
intervals.
    (iii) You provide the maintenance free of charge and clearly say so 
in your maintenance instructions.
    (iv) You otherwise show us that the maintenance is reasonably likely 
to be done at the recommended intervals.
    (2) For engines below 130 kW, you may not schedule critical 
emission-related maintenance more frequently than the following minimum 
intervals, except as specified in paragraphs (a)(4), (b), and (c) of 
this section:
    (i) For EGR-related filters and coolers, PCV valves, and fuel 
injector tips (cleaning only), the minimum interval is 1,500 hours.
    (ii) For the following components, including associated sensors and 
actuators, the minimum interval is 3,000 hours: Fuel injectors, 
turbochargers, catalytic converters, electronic control units, 
particulate traps, trap oxidizers, components related to particulate 
traps and trap oxidizers, EGR systems (including related components, but 
excluding filters and coolers), and other add-on components. For 
particulate traps, trap oxidizers, and components related to either of 
these, maintenance is limited to cleaning and repair only.
    (3) For Category 1 and Category 2 engines at or above 130 kW, you 
may not schedule critical emission-related maintenance more frequently 
than the following minimum intervals, except as specified in paragraphs 
(a)(4), (b), and (c) of this section:
    (i) For EGR-related filters and coolers, PCV valves, and fuel 
injector tips

[[Page 183]]

(cleaning only), the minimum interval is 1,500 hours.
    (ii) For the following components, including associated sensors and 
actuators, the minimum interval is 4500 hours: Fuel injectors, 
turbochargers, catalytic converters, electronic control units, 
particulate traps, trap oxidizers, components related to particulate 
traps and trap oxidizers, EGR systems (including related components, but 
excluding filters and coolers), and other add-on components. For 
particulate traps, trap oxidizers, and components related to either of 
these, maintenance is limited to cleaning and repair only.
    (4) We may approve shorter maintenance intervals than those listed 
in paragraph (a)(3) of this section where technologically necessary.
    (5) If your engine family has an alternate useful life under Sec. 
1042.101(e) that is shorter than the period specified in paragraph 
(a)(2) or (a)(3) of this section, you may not schedule critical 
emission-related maintenance more frequently than the alternate useful 
life, except as specified in paragraph (c) of this section.
    (b) Recommended additional maintenance. You may recommend any 
additional amount of maintenance on the components listed in paragraph 
(a) of this section, as long as you state clearly that these maintenance 
steps are not necessary to keep the emission-related warranty valid. If 
operators do the maintenance specified in paragraph (a) of this section, 
but not the recommended additional maintenance, this does not allow you 
to disqualify those engines from in-use testing or deny a warranty 
claim. Do not take these maintenance steps during service accumulation 
on your emission-data engines.
    (c) Special maintenance. You may specify more frequent maintenance 
to address problems related to special situations, such as atypical 
engine operation. You must clearly state that this additional 
maintenance is associated with the special situation you are addressing.
    (d) Noncritical emission-related maintenance. Subject to the 
provisions of this paragraph (d), you may schedule any amount of 
emission-related inspection or maintenance that is not covered by 
paragraph (a) of this section (that is, maintenance that is neither 
explicitly identified as critical emission-related maintenance, nor that 
we approve as critical emission-related maintenance). Noncritical 
emission-related maintenance generally includes maintenance on the 
components we specify in 40 CFR part 1068, Appendix I that is not 
covered in paragraph (a) of this section. You must state in the owners 
manual that these steps are not necessary to keep the emission-related 
warranty valid. If operators fail to do this maintenance, this does not 
allow you to disqualify those engines from in-use testing or deny a 
warranty claim. Do not take these inspection or maintenance steps during 
service accumulation on your emission-data engines.
    (e) Maintenance that is not emission-related. For maintenance 
unrelated to emission controls, you may schedule any amount of 
inspection or maintenance. You may also take these inspection or 
maintenance steps during service accumulation on your emission-data 
engines, as long as they are reasonable and technologically necessary. 
This might include adding engine oil, changing air, fuel, or oil 
filters, servicing engine-cooling systems, and adjusting idle speed, 
governor, engine bolt torque, valve lash, or injector lash. You may 
perform this nonemission-related maintenance on emission-data engines at 
the least frequent intervals that you recommend to the ultimate 
purchaser (but not intervals recommended for severe service).
    (f) Source of parts and repairs. State clearly on the first page of 
your written maintenance instructions that a repair shop or person of 
the owner's choosing may maintain, replace, or repair emission control 
devices and systems. Your instructions may not require components or 
service identified by brand, trade, or corporate name. Also, do not 
directly or indirectly condition your warranty on a requirement that the 
engine be serviced by your franchised dealers or any other service 
establishments with which you have a commercial relationship. You may 
disregard the requirements in this paragraph (f) if you do one of two 
things:

[[Page 184]]

    (1) Provide a component or service without charge under the purchase 
agreement.
    (2) Get us to waive this prohibition in the public's interest by 
convincing us the engine will work properly only with the identified 
component or service.
    (g) Payment for scheduled maintenance. Owners are responsible for 
properly maintaining their engines. This generally includes paying for 
scheduled maintenance. However, manufacturers must pay for scheduled 
maintenance during the useful life if it meets all the following 
criteria:
    (1) Each affected component was not in general use on similar 
engines before the applicable dates shown in paragraph (6) of the 
definition of ``new marine engine'' in Sec. 1042.901.
    (2) The primary function of each affected component is to reduce 
emissions.
    (3) The cost of the scheduled maintenance is more than 2 percent of 
the price of the engine.
    (4) Failure to perform the maintenance would not cause clear 
problems that would significantly degrade the engine's performance.
    (h) Owners manual. Explain the owner's responsibility for proper 
maintenance in the owners manual.

[73 37243, June 30, 2008, as amended at 75 FR 22999, Apr. 30, 2010]



Sec. 1042.130  Installation instructions for vessel manufacturers.

    (a) If you sell an engine for someone else to install in a vessel, 
give the engine installer instructions for installing it consistent with 
the requirements of this part. Include all information necessary to 
ensure that an engine will be installed in its certified configuration.
    (b) Make sure these instructions have the following information:
    (1) Include the heading: ``Emission-related installation 
instructions''.
    (2) State: ``Failing to follow these instructions when installing a 
certified engine in a vessel violates federal law (40 CFR 1068.105(b)), 
subject to fines or other penalties as described in the Clean Air 
Act.''.
    (3) Describe the instructions needed to properly install the exhaust 
system and any other components. Include instructions consistent with 
the requirements of Sec. 1042.205(u).
    (4) Describe any necessary steps for installing the diagnostic 
system described in Sec. 1042.110.
    (5) Describe any limits on the range of applications needed to 
ensure that the engine operates consistently with your application for 
certification. For example, if your engines are certified only for 
constant-speed operation, tell vessel manufacturers not to install the 
engines in variable-speed applications or modify the governor.
    (6) Describe any other instructions to make sure the installed 
engine will operate according to design specifications in your 
application for certification. This may include, for example, 
instructions for installing aftertreatment devices when installing the 
engines.
    (7) State: ``If you install the engine in a way that makes the 
engine's emission control information label hard to read during normal 
engine maintenance, you must place a duplicate label on the vessel, as 
described in 40 CFR 1068.105.''.
    (8) Describe any vessel labeling requirements specified in Sec. 
1042.135.
    (c) You do not need installation instructions for engines you 
install in your own vessels.
    (d) Provide instructions in writing or in an equivalent format. For 
example, you may post instructions on a publicly available Web site for 
downloading or printing. If you do not provide the instructions in 
writing, explain in your application for certification how you will 
ensure that each installer is informed of the installation requirements.



Sec. 1042.135  Labeling.

    (a) Assign each engine a unique identification number and 
permanently affix, engrave, or stamp it on the engine in a legible way.
    (b) At the time of manufacture, affix a permanent and legible label 
identifying each engine. The label must be--
    (1) Attached in one piece so it is not removable without being 
destroyed or defaced.
    (2) Secured to a part of the engine needed for normal operation and 
not normally requiring replacement.

[[Page 185]]

    (3) Durable and readable for the engine's entire life.
    (4) Written in English.
    (c) The label must--
    (1) Include the heading ``EMISSION CONTROL INFORMATION''.
    (2) Include your full corporate name and trademark. You may identify 
another company and use its trademark instead of yours if you comply 
with the provisions of Sec. 1042.640.
    (3) Include EPA's standardized designation for the engine family 
(and subfamily, where applicable).
    (4) Identify all the emission standards that apply to the engine (or 
FELs, if applicable). If you do not declare an FEL under subpart H of 
this part, you may alternatively state the engine's category, 
displacement (in liters or L/cyl), maximum engine power (in kW), and 
power density (in kW/L) as needed to determine the emission standards 
for the engine family. You may specify displacement, maximum engine 
power, or power density as a range consistent with the ranges listed in 
Sec. 1042.101. See Sec. 1042.140 for descriptions of how to specify 
per-cylinder displacement, maximum engine power, and power density.
    (5) State the date of manufacture [DAY (optional), MONTH, and YEAR]; 
however, you may omit this from the label if you stamp, engrave, or 
otherwise permanently identify it elsewhere on the engine, in which case 
you must also describe in your application for certification where you 
will identify the date on the engine.
    (6) Identify the application(s) for which the engine family is 
certified (such as constant-speed auxiliary, variable-speed propulsion 
engines used with fixed-pitch propellers, etc.). If the engine is 
certified as a recreational engine, state: ``INSTALLING THIS 
RECREATIONAL ENGINE IN A COMMERCIAL VESSEL OR USING THE VESSEL FOR 
COMMERCIAL PURPOSES MAY VIOLATE FEDERAL LAW SUBJECT TO CIVIL PENALTY (40 
CFR 1042.601).''.
    (7) For engines requiring ULSD, state: ``ULTRA LOW SULFUR DIESEL 
FUEL ONLY''.
    (8) State the useful life for your engine family if the applicable 
useful life is based on the provisions of Sec. 1042.101(e)(2) or (3), 
or Sec. 1042.104(d)(2).
    (9) Identify the emission control system. Use terms and 
abbreviations as described in 40 CFR 1068.45. You may omit this 
information from the label if there is not enough room for it and you 
put it in the owners manual instead.
    (10) State: ``THIS MARINE ENGINE COMPLIES WITH U.S. EPA REGULATIONS 
FOR [MODEL YEAR].''.
    (11) For a Category 1 or Category 2 engine that can be modified to 
operate on residual fuel, but has not been certified to meet the 
standards on such a fuel, include the statement: ``THIS ENGINE IS 
CERTIFIED FOR OPERATION ONLY WITH DIESEL FUEL. MODIFYING THE ENGINE TO 
OPERATE ON RESIDUAL OR INTERMEDIATE FUEL MAY BE A VIOLATION OF FEDERAL 
LAW SUBJECT TO CIVIL PENALTIES.''
    (12) For an engine equipped with on-off emissions controls as 
allowed by Sec. 1042.115, include the statement: ``THIS ENGINE IS 
CERTIFIED WITH ON-OFF EMISSION CONTROLS. OPERATION OF THE ENGINE 
CONTRARY TO 40 CFR 1042.115(g) IS A VIOLATION OF FEDERAL LAW SUBJECT TO 
CIVIL PENALTIES.''
    (13) For engines intended for installation on domestic or public 
vessels, include the following statement: ``THIS ENGINE DOES NOT COMPLY 
WITH INTERNATIONAL MARINE REGULATIONS FOR COMMERCIAL VESSELS UNLESS IT 
IS ALSO COVERED BY AN EIAPP CERTIFICATE.''
    (d) You may add information to the emission control information 
label as follows:
    (1) You may identify other emission standards that the engine meets 
or does not meet (such as international standards). You may include this 
information by adding it to the statement we specify or by including a 
separate statement.
    (2) You may add other information to ensure that the engine will be 
properly maintained and used.
    (3) You may add appropriate features to prevent counterfeit labels. 
For example, you may include the engine's unique identification number 
on the label.

[[Page 186]]

    (e) For engines requiring ULSD, create a separate label with the 
statement: ``ULTRA LOW SULFUR DIESEL FUEL ONLY''. Permanently attach 
this label to the vessel near the fuel inlet or, if you do not 
manufacture the vessel, take one of the following steps to ensure that 
the vessel will be properly labeled:
    (1) Provide the label to each vessel manufacturer and include in the 
emission-related installation instructions the requirement to place this 
label near the fuel inlet.
    (2) Confirm that the vessel manufacturers install their own 
complying labels.
    (f) You may ask us to approve modified labeling requirements in this 
part 1042 if you show that it is necessary or appropriate. We will 
approve your request if your alternate label is consistent with the 
intent of the labeling requirements of this part.
    (g) If you obscure the engine label while installing the engine in 
the vessel such that the label will be hard to read during normal 
maintenance, you must place a duplicate label on the vessel. If others 
install your engine in their vessels in a way that obscures the engine 
label, we require them to add a duplicate label on the vessel (see 40 
CFR 1068.105); in that case, give them the number of duplicate labels 
they request and keep the following records for at least five years:
    (1) Written documentation of the request from the vessel 
manufacturer.
    (2) The number of duplicate labels you send for each family and the 
date you sent them.

[73 37243, June 30, 2008, as amended at 75 FR 22999, Apr. 30, 2010]



Sec. 1042.140  Maximum engine power, displacement, power density, and maximum in-use engine speed.

    This section describes how to determine the maximum engine power, 
displacement, and power density of an engine for the purposes of this 
part. Note that maximum engine power may differ from the definition of 
``maximum test power'' in Sec. 1042.901. This section also specifies 
how to determine maximum in-use engine speed for Category 3 engines.
    (a) An engine configuration's maximum engine power is the maximum 
brake power point on the nominal power curve for the engine 
configuration, as defined in this section. Round the power value to the 
nearest whole kilowatt.
    (b) The nominal power curve of an engine configuration is the 
relationship between maximum available engine brake power and engine 
speed for an engine, using the mapping procedures of 40 CFR part 1065, 
based on the manufacturer's design and production specifications for the 
engine. This information may also be expressed by a torque curve that 
relates maximum available engine torque with engine speed.
    (c) An engine configuration's per-cylinder displacement is the 
intended swept volume of each cylinder. The swept volume of the engine 
is the product of the internal cross-section area of the cylinders, the 
stroke length, and the number of cylinders. Calculate the engine's 
intended swept volume from the design specifications for the cylinders 
using enough significant figures to allow determination of the 
displacement to the nearest 0.02 liters. Determine the final value by 
truncating digits to establish the per-cylinder displacement to the 
nearest 0.1 liters. For example, for an engine with circular cylinders 
having an internal diameter of 13.0 cm and a 15.5 cm stroke length, the 
rounded displacement would be: (13.0/2) \2\ x ([pi]) x (15.5) / 1000 = 
2.0 liters.
    (d) The nominal power curve and intended swept volume must be within 
the range of the actual power curves and swept volumes of production 
engines considering normal production variability. If after production 
begins, it is determined that either your nominal power curve or your 
intended swept volume does not represent production engines, we may 
require you to amend your application for certification under Sec. 
1042.225.
    (e) Throughout this part, references to a specific power value for 
an engine are based on maximum engine power. For example, the group of 
engines with maximum engine power above 600 kW may be referred to as 
engines above 600 kW.

[[Page 187]]

    (f) Calculate an engine family's power density in kW/L by dividing 
the unrounded maximum engine power by the engine's unrounded per-
cylinder displacement, then dividing by the number of cylinders. Round 
the calculated value to the nearest whole number.
    (g) Calculate a maximum test speed for the nominal power curve as 
specified in 40 CFR 1065.610. This is the maximum in-use engine speed 
used for calculating the NOX standard in Sec. 1042.104 for 
Category 3 engines. Alternatively, you may use a lower value if engine 
speed will be limited in actual use to that lower value.

[73 37243, June 30, 2008, as amended at 75 FR 23000, Apr. 30, 2010]



Sec. 1042.145  Interim provisions.

    (a) General. The provisions in this section apply instead of other 
provisions in this part. This section describes when these interim 
provisions expire. Only the provisions of paragraph (h) of this section 
apply for Category 3 engines.
    (b) Delayed standards. Post-manufacturer marinizers that are small-
volume engine manufacturers may delay compliance with the Tier 3 
standards for engines below 600 kW as follows:
    (1) You may delay compliance with the Tier 3 standards for one model 
year, as long as the engines meet all the requirements that apply to 
Tier 2 engines.
    (2) You may delay compliance with the NTE standards for Tier 3 
engines for three model years in addition to the one-year delay 
specified in paragraph (b)(1) of this section, as long as the engines 
meet all other Tier 3 requirements for the appropriate model year.
    (c) Part 1065 test procedures for Category 1 and Category 2 engines. 
You must generally use the test procedures specified in subpart F of 
this part, including the applicable test procedures in 40 CFR part 1065. 
As specified in this paragraph (c), you may use a combination of the 
test procedures specified in this part and the test procedures specified 
for Tier 2 engines before January 1, 2015. After this date, you must use 
test procedures only as specified in subpart F of this part.
    (1) You may determine maximum test speed for engines below 37 kW as 
specified in 40 CFR part 89 without request through the 2009 model year.
    (2) Before January 1, 2015, you may ask to use some or all of the 
procedures specified in 40 CFR part 94 (or 40 CFR part 89 for engines 
below 37 kW) for engines certified under this part 1042. If you ask to 
rely on a combination of procedures under this paragraph (c)(2), we will 
approve your request only if you show us that it does not affect your 
ability to demonstrate compliance with the applicable emission 
standards. This generally requires that the combined procedures would 
result in emission measurements at least as high as those that would be 
measured using the procedures specified in this part. Alternatively, you 
may demonstrate that the combined effects of the different procedures is 
small relative to your compliance margin (the degree to which your 
emissions are below the applicable standards).
    (d) [Reserved]
    (e) Delayed compliance with NTE standards. Engines below 56 kW may 
delay complying with the NTE standards specified in Sec. 1042.101(c) 
until the 2013 model year. Engines at or above 56 kW and below 75 kW may 
delay complying with the NTE standards specified in Sec. 1042.101(c) 
until the 2012 model year.
    (f) In-use compliance limits. The provisions of this paragraph (f) 
apply for the first three model years of the Tier 4 standards. For 
purposes of determining compliance based on testing other than 
certification or production-line testing, calculate the applicable in-
use compliance limits by adjusting the applicable standards/FELs. The PM 
adjustment does not apply for engines with a PM standard or FEL above 
0.04 g/kW-hr. The NOX adjustment does not apply for engines 
with a NOX FEL above 2.7 g/kW-hr. Add the applicable 
adjustments in one of the following tables to the otherwise applicable 
standards and NTE limits. You must specify during certification which 
add-ons, if any, will apply for your engines.

[[Page 188]]



Table 1 to Sec.  1042.145--In-use Adjustments for the First Three Model
                      Years of the Tier 4 Standards
------------------------------------------------------------------------
                                         In-use adjustments (g/kW-hr)
                                     -----------------------------------
Fraction of useful life already used   For Tier 4 NOX    For Tier 4  PM
                                          standards         standards
------------------------------------------------------------------------
0 < hours <= 50% of useful life.....               0.9              0.02
50 < hours <= 75% of useful life....               1.3              0.02
hours  75% of useful life               1.7              0.02
------------------------------------------------------------------------


  Table 2 to Sec.  1042.145--Optional In-Use Adjustments for the First
                Three Model Years of the Tier 4 Standards
------------------------------------------------------------------------
                                           In-use adjustments (g/kW-hr)
                                         -------------------------------
                                          For model year  For model year
  Fraction of useful life already used       2017 and        2017 and
                                          earlier Tier 4  earlier Tier 4
                                           NOX standards   PM standards
------------------------------------------------------------------------
0 < hours <= 50% of useful life.........             0.3            0.05
50 < hours <= 75% of useful life........             0.4            0.05
hours  75% of useful life....             0.5            0.05
------------------------------------------------------------------------

    (g) Deficiencies for NTE standards. You may ask us to accept as 
compliant an engine that does not fully meet specific requirements under 
the applicable NTE standards. Such deficiencies are intended to allow 
for minor deviations from the NTE standards under limited conditions. We 
expect your engines to have functioning emission control hardware that 
allows you to comply with the NTE standards.
    (1) Request our approval for specific deficiencies in your 
application for certification, or before you submit your application. We 
will not approve deficiencies retroactively to cover engines already 
certified. In your request, identify the scope of each deficiency and 
describe any auxiliary emission control devices you will use to control 
emissions to the lowest practical level, considering the deficiency you 
are requesting.
    (2) We will approve a deficiency only if compliance would be 
infeasible or unreasonable considering such factors as the technical 
feasibility of the given hardware and the applicable lead time and 
production cycles. We may consider other relevant factors.
    (3) Our approval applies only for a single model year and may be 
limited to specific engine configurations. We may approve your request 
for the same deficiency in the following model year if correcting the 
deficiency would require unreasonable hardware or software modifications 
and we determine that you have demonstrated an acceptable level of 
effort toward complying.
    (4) You may ask for any number of deficiencies in the first three 
model years during which NTE standards apply for your engines. For the 
next four model years, we may approve up to three deficiencies per 
engine family. Deficiencies of the same type that apply similarly to 
different power ratings within a family count as one deficiency per 
family. We may condition approval of any such additional deficiencies 
during these four years on any additional conditions we determine to be 
appropriate. We will not approve deficiencies after the seven-year 
period specified in this paragraph (g)(4), unless they are related to 
safety.
    (h) The following interim provisions apply for Category 3 engines:
    (1) Applicability of Tier 3 standards to Category 3 engines 
operating in Alaska, Hawaii, and U.S. territories. (i) Category 3 
engines are not required to comply with the Tier 3 NOX 
standard when operating in areas of Guam, American Samoa, the 
Commonwealth of the Northern Mariana Islands, Puerto Rico, or U.S. 
Virgin Islands. Category 3 engines are also not required to comply with 
the Tier 3 NOX standards when operating in the waters of the 
smallest Hawaiian islands or in the waters of

[[Page 189]]

Alaska west of Kodiak. For the purpose of this paragraph (h)(1), ``the 
smallest Hawaiian islands'' includes all Hawaiian islands other than 
Hawaii, Kahoolawe, Kauai, Lanai, Maui, Molokai, Niihau, and Oahu. 
Engines must comply fully with the appropriate Tier 2 NOX 
standard and all other applicable requirements when operating in the 
areas identified in this paragraph (h)(1).
    (ii) The provisions of paragraph (h)(1)(i) of this section do not 
apply to ships operating in an ECA or an ECA associated area. The Tier 3 
standards apply in full for any area included in an ECA or an ECA 
associated area.
    (2) Part 1065 test procedures. You must generally use the test 
procedures specified in subpart F of this part for Category 3 engines, 
including the applicable test procedures in 40 CFR part 1065. You may 
use a combination of the test procedures specified in this part and the 
test procedures specified in 40 CFR part 94 before January 1, 2016 
without request. After this date, you must use test procedures only as 
specified in subpart F of this part.
    (i) Limitation of 40 CFR 1068.101 before July 1, 2010. 
Notwithstanding other provisions of this part or 40 CFR part 94, for the 
period June 29, 2010 through July 1, 2010, it is not a violation of 40 
CFR 1068.101 to operate in U.S. waters uncertified engines installed on 
vessels manufactured outside of the United States before June 29, 2010. 
Operation of such vessels in U.S. waters on or after July 1, 2010 is 
deemed to be introduction into U.S. commerce of a new marine engine.

[73 37243, June 30, 2008, as amended at 73 FR 59194, Oct. 8, 2008; 75 FR 
23000, Apr. 30, 2010]



                  Subpart C_Certifying Engine Families



Sec. 1042.201  General requirements for obtaining a certificate of conformity.

    (a) You must send us a separate application for a certificate of 
conformity for each engine family. A certificate of conformity is valid 
starting with the indicated effective date, but it is not valid for any 
production after December 31 of the model year for which it is issued. 
No certificate will be issued after December 31 of the model year.
    (b) The application must contain all the information required by 
this part and must not include false or incomplete statements or 
information (see Sec. 1042.255).
    (c) We may ask you to include less information than we specify in 
this subpart, as long as you maintain all the information required by 
Sec. 1042.250.
    (d) You must use good engineering judgment for all decisions related 
to your application (see 40 CFR 1068.5).
    (e) An authorized representative of your company must approve and 
sign the application.
    (f) See Sec. 1042.255 for provisions describing how we will process 
your application.
    (g) We may require you to deliver your test engines to a facility we 
designate for our testing (see Sec. 1042.235(c)).
    (h) For engines that become new after being placed into service, 
such as engines installed on imported vessels, we may specify alternate 
certification provisions consistent with the intent of this part. See 
the definition of ``new marine engine'' in Sec. 1042.901.

[73 37243, June 30, 2008, as amended at 75 FR 23000, Apr. 30, 2010]



Sec. 1042.205  Application requirements.

    This section specifies the information that must be in your 
application, unless we ask you to include less information under Sec. 
1042.201(c). We may require you to provide additional information to 
evaluate your application.
    (a) Describe the engine family's specifications and other basic 
parameters of the engine's design and emission controls. List the fuel 
type on which your engines are designed to operate (for example, ultra 
low-sulfur diesel fuel). List each distinguishable engine configuration 
in the engine family. For each engine configuration, list the maximum 
engine power and the range of values for maximum engine power resulting 
from production tolerances, as described in Sec. 1042.140.
    (b) Explain how the emission control system operates. Describe in 
detail all system components for controlling exhaust emissions, 
including all auxiliary emission control devices (AECDs) and

[[Page 190]]

all fuel-system components you will install on any production or test 
engine. Identify the part number of each component you describe. For 
this paragraph (b), treat as separate AECDs any devices that modulate or 
activate differently from each other. Include all the following:
    (1) Give a general overview of the engine, the emission control 
strategies, and all AECDs.
    (2) Describe each AECD's general purpose and function.
    (3) Identify the parameters that each AECD senses (including 
measuring, estimating, calculating, or empirically deriving the values). 
Include vessel-based parameters and state whether you simulate them 
during testing with the applicable procedures.
    (4) Describe the purpose for sensing each parameter.
    (5) Identify the location of each sensor the AECD uses.
    (6) Identify the threshold values for the sensed parameters that 
activate the AECD.
    (7) Describe the parameters that the AECD modulates (controls) in 
response to any sensed parameters, including the range of modulation for 
each parameter, the relationship between the sensed parameters and the 
controlled parameters and how the modulation achieves the AECD's stated 
purpose. Use graphs and tables, as necessary.
    (8) Describe each AECD's specific calibration details. This may be 
in the form of data tables, graphical representations, or some other 
description.
    (9) Describe the hierarchy among the AECDs when multiple AECDs sense 
or modulate the same parameter. Describe whether the strategies interact 
in a comparative or additive manner and identify which AECD takes 
precedence in responding, if applicable.
    (10) Explain the extent to which the AECD is included in the 
applicable test procedures specified in subpart F of this part.
    (11) Do the following additional things for AECDs designed to 
protect engines or vessels:
    (i) Identify the engine and/or vessel design limits that make 
protection necessary and describe any damage that would occur without 
the AECD.
    (ii) Describe how each sensed parameter relates to the protected 
components' design limits or those operating conditions that cause the 
need for protection.
    (iii) Describe the relationship between the design limits/parameters 
being protected and the parameters sensed or calculated as surrogates 
for those design limits/parameters, if applicable.
    (iv) Describe how the modulation by the AECD prevents engines and/or 
vessels from exceeding design limits.
    (v) Explain why it is necessary to estimate any parameters instead 
of measuring them directly and describe how the AECD calculates the 
estimated value, if applicable.
    (vi) Describe how you calibrate the AECD modulation to activate only 
during conditions related to the stated need to protect components and 
only as needed to sufficiently protect those components in a way that 
minimizes the emission impact.
    (12) Include any other information required by this part with 
respect to AECDs. For example, see Sec. 1042.115 for requirements 
related to on-off technologies.
    (c) If your engines are equipped with an engine diagnostic system, 
explain how it works, describing especially the engine conditions (with 
the corresponding diagnostic trouble codes) that cause the malfunction-
indicator light to go on.
    (d) Describe the engines you selected for testing and the reasons 
for selecting them.
    (e) Describe the test equipment and procedures that you used, 
including the duty cycle(s) and the corresponding engine applications. 
Also describe any special or alternate test procedures you used.
    (f) Describe how you operated the emission-data engine before 
testing, including the duty cycle and the number of engine operating 
hours used to stabilize emission levels. Explain why you selected the 
method of service accumulation. Describe any scheduled maintenance you 
did.
    (g) List the specifications of the test fuel to show that it falls 
within the required ranges we specify in 40 CFR part 1065.

[[Page 191]]

    (h) Identify the engine family's useful life.
    (i) Include the maintenance and warranty instructions you will give 
to the ultimate purchaser of each new engine (see Sec. Sec. 1042.120 
and 1042.125). Describe your plan for meeting warranty obligations under 
Sec. 1042.120.
    (j) Include the emission-related installation instructions you will 
provide if someone else installs your engines in a vessel (see Sec. 
1042.130).
    (k) Describe your emission control information label (see Sec. 
1042.135).
    (l) Identify the emission standards and/or FELs to which you are 
certifying engines in the engine family.
    (m) Identify the engine family's deterioration factors and describe 
how you developed them (see Sec. 1042.245). Present any emission test 
data you used for this.
    (n) State that you operated your emission-data engines as described 
in the application (including the test procedures, test parameters, and 
test fuels) to show you meet the requirements of this part.
    (o) Present emission data for HC, NOX, PM, and CO on an 
emission-data engine to show your engines meet emission standards as 
specified in Sec. Sec. 1042.101 or 1042.104. Note that you must submit 
PM data for all engines, whether or not a PM standard applies. Show 
emission figures before and after applying adjustment factors for 
regeneration and deterioration factors for each pollutant and for each 
engine. If we specify more than one grade of any fuel type (for example, 
high-sulfur and low-sulfur diesel fuel), you need to submit test data 
only for one grade, unless the regulations of this part specify 
otherwise for your engine. Include emission results for each mode for 
Category 3 engines or for other engines if you do discrete-mode testing 
under Sec. 1042.505. Note that Sec. Sec. 1042.235 and 1042.245 allows 
you to submit an application in certain cases without new emission data.
    (p) For Category 1 and Category 2 engines, state that all the 
engines in the engine family comply with the applicable not-to-exceed 
emission standards in Sec. 1042.101 for all normal operation and use 
when tested as specified in Sec. 1042.515. Describe any relevant 
testing, engineering analysis, or other information in sufficient detail 
to support your statement.
    (q) [Reserved]
    (r) Report test results as follows:
    (1) Report all test results involving measurement of pollutants for 
which emission standards apply. Include test results from invalid tests 
or from any other tests, whether or not they were conducted according to 
the test procedures of subpart F of this part. We may ask you to send 
other information to confirm that your tests were valid under the 
requirements of this part and 40 CFR part 1065.
    (2) Report measured CO2, N2O, and 
CH4 as described in Sec. 1042.235. Small-volume engine 
manufacturers may omit reporting N2O and CH4.
    (s) Describe all adjustable operating parameters (see Sec. 
1042.115(d)), including production tolerances. Include the following in 
your description of each parameter:
    (1) The nominal or recommended setting.
    (2) The intended physically adjustable range.
    (3) The limits or stops used to establish adjustable ranges.
    (4) For Category 1 engines, information showing why the limits, 
stops, or other means of inhibiting adjustment are effective in 
preventing adjustment of parameters on in-use engines to settings 
outside your intended physically adjustable ranges.
    (5) For Category 2 and Category 3 engines, propose a range of 
adjustment for each adjustable parameter, as described in Sec. 
1042.115(d). Include information showing why the limits, stops, or other 
means of inhibiting adjustment are effective in preventing adjustment of 
parameters on in-use engines to settings outside your proposed 
adjustable ranges.
    (t) Provide the information to read, record, and interpret all the 
information broadcast by an engine's onboard computers and electronic 
control units. State that, upon request, you will give us any hardware, 
software, or tools we would need to do this. If you broadcast a 
surrogate parameter for torque values, you must provide us what we need 
to convert these into torque units. You may reference any appropriate 
publicly

[[Page 192]]

released standards that define conventions for these messages and 
parameters. Format your information consistent with publicly released 
standards.
    (u) Confirm that your emission-related installation instructions 
specify how to ensure that sampling of exhaust emissions will be 
possible after engines are installed in vessels and placed in service. 
Show how to sample exhaust emissions in a way that prevents diluting the 
exhaust sample with ambient air.
    (v) State whether your certification is limited for certain engines. 
If this is the case, describe how you will prevent use of these engines 
in applications for which they are not certified. This applies for 
engines such as the following:
    (1) Constant-speed engines.
    (2) Engines used with controllable-pitch propellers.
    (3) Recreational engines.
    (w) Unconditionally certify that all the engines in the engine 
family comply with the requirements of this part, other referenced parts 
of the CFR, and the Clean Air Act.
    (x) Include good-faith estimates of U.S.-directed production 
volumes. Include a justification for the estimated production volumes if 
they are substantially different than actual production volumes in 
earlier years for similar models.
    (y) Include the information required by other subparts of this part. 
For example, include the information required by Sec. 1042.725 if you 
participate in the ABT program.
    (z) Include other applicable information, such as information 
specified in this part or 40 CFR part 1068 related to requests for 
exemptions.
    (aa) Name an agent for service located in the United States. Service 
on this agent constitutes service on you or any of your officers or 
employees for any action by EPA or otherwise by the United States 
related to the requirements of this part.
    (bb) The following provisions apply for imported engines:
    (1) Describe your normal practice for importing engines. For 
example, this may include identifying the names and addresses of any 
agents you have authorized to import your engines. Engines imported by 
nonauthorized agents are not covered by your certificate.
    (2) For engines below 560 kW, identify a test facility in the United 
States where you can test your engines if we select them for testing 
under a selective enforcement audit, as specified in 40 CFR part 1068.

[73 37243, June 30, 2008, as amended at 74 FR 56509, Oct. 30, 2009; 75 
FR 23000, Apr. 30, 2010]



Sec. 1042.210  Preliminary approval.

    If you send us information before you finish the application, we 
will review it and make any appropriate determinations, especially for 
questions related to engine family definitions, auxiliary emission 
control devices, deterioration factors, useful life, testing for service 
accumulation, maintenance, and compliance with not-to-exceed standards. 
See Sec. 1042.245 for specific provisions that apply for deterioration 
factors. Decisions made under this section are considered to be 
preliminary approval, subject to final review and approval. We will 
generally not reverse a decision where we have given you preliminary 
approval, unless we find new information supporting a different 
decision. If you request preliminary approval related to the upcoming 
model year or the model year after that, we will make best-efforts to 
make the appropriate determinations as soon as practicable. We will 
generally not provide preliminary approval related to a future model 
year more than two years ahead of time.



Sec. 1042.220  Amending maintenance instructions.

    You may amend your emission-related maintenance instructions after 
you submit your application for certification as long as the amended 
instructions remain consistent with the provisions of Sec. 1042.125. 
You must send the Designated Compliance Officer a written request to 
amend your application for certification for an engine family if you 
want to change the emission-related maintenance instructions in a way 
that could affect emissions. In your request, describe the proposed 
changes to the maintenance instructions. If operators follow the 
original maintenance instructions rather than

[[Page 193]]

the newly specified maintenance, this does not allow you to disqualify 
those engines from in-use testing or deny a warranty claim.
    (a) If you are decreasing or eliminating any specified maintenance, 
you may distribute the new maintenance instructions to your customers 30 
days after we receive your request, unless we disapprove your request. 
This would generally include replacing one maintenance step with 
another. We may approve a shorter time or waive this requirement.
    (b) If your requested change would not decrease the specified 
maintenance, you may distribute the new maintenance instructions anytime 
after you send your request. For example, this paragraph (b) would cover 
adding instructions to increase the frequency of filter changes for 
engines in severe-duty applications.
    (c) You need not request approval if you are making only minor 
corrections (such as correcting typographical mistakes), clarifying your 
maintenance instructions, or changing instructions for maintenance 
unrelated to emission control. We may ask you to send us copies of 
maintenance instructions revised under this paragraph (c).

[75 FR 23001, Apr. 30, 2010]



Sec. 1042.225  Amending applications for certification.

    Before we issue you a certificate of conformity, you may amend your 
application to include new or modified engine configurations, subject to 
the provisions of this section. After we have issued your certificate of 
conformity, you may send us an amended application requesting that we 
include new or modified engine configurations within the scope of the 
certificate, subject to the provisions of this section. You must amend 
your application if any changes occur with respect to any information 
that is included or should be included in your application.
    (a) You must amend your application before you take any of the 
following actions:
    (1) Add an engine configuration to an engine family. In this case, 
the engine configuration added must be consistent with other engine 
configurations in the engine family with respect to the criteria listed 
in Sec. 1042.230.
    (2) Change an engine configuration already included in an engine 
family in a way that may affect emissions, or change any of the 
components you described in your application for certification. This 
includes production and design changes that may affect emissions any 
time during the engine's lifetime.
    (3) Modify an FEL for an engine family as described in paragraph (f) 
of this section.
    (b) To amend your application for certification as specified in 
paragraph (a) of this section, send the relevant information to the 
Designated Compliance Officer.
    (1) Describe in detail the addition or change in the engine model or 
configuration you intend to make.
    (2) Include engineering evaluations or data showing that the amended 
engine family complies with all applicable requirements. You may do this 
by showing that the original emission-data engine is still appropriate 
for showing that the amended family complies with all applicable 
requirements.
    (3) If the original emission-data engine for the engine family is 
not appropriate to show compliance for the new or modified engine 
configuration, include new test data showing that the new or modified 
engine configuration meets the requirements of this part.
    (c) We may ask for more test data or engineering evaluations. You 
must give us these within 30 days after we request them.
    (d) For engine families already covered by a certificate of 
conformity, we will determine whether the existing certificate of 
conformity covers your newly added or modified engine. You may ask for a 
hearing if we deny your request (see Sec. 1042.920).
    (e) For engine families already covered by a certificate of 
conformity, you may start producing the new or modified engine 
configuration anytime after you send us your amended application and 
before we make a decision under paragraph (d) of this section. However, 
if we determine that the affected engines do not meet applicable 
requirements, we will notify you to cease production of the engines and 
may require

[[Page 194]]

you to recall the engines at no expense to the owner. Choosing to 
produce engines under this paragraph (e) is deemed to be consent to 
recall all engines that we determine do not meet applicable emission 
standards or other requirements and to remedy the nonconformity at no 
expense to the owner. If you do not provide information required under 
paragraph (c) of this section within 30 days after we request it, you 
must stop producing the new or modified engines.
    (f) You may ask us to approve a change to your FEL in certain cases 
after the start of production. The changed FEL may not apply to engines 
you have already introduced into U.S. commerce, except as described in 
this paragraph (f). If we approve a changed FEL after the start of 
production, you must include the new FEL on the emission control 
information label for all engines produced after the change. You may ask 
us to approve a change to your FEL in the following cases:
    (1) You may ask to raise your FEL for your engine family at any 
time. In your request, you must show that you will still be able to meet 
the emission standards as specified in subparts B and H of this part. If 
you amend your application by submitting new test data to include a 
newly added or modified engine, as described in paragraph (b)(3) of this 
section, use the appropriate FELs with corresponding production volumes 
to calculate emission credits for the model year, as described in 
subpart H of this part. In all other circumstances, you must use the 
higher FEL for the entire family to calculate emission credits under 
subpart H of this part.
    (2) You may ask to lower the FEL for your engine family only if you 
have test data from production engines showing that emissions are below 
the proposed lower FEL. The lower FEL applies only to engines you 
produce after we approve the new FEL. Use the appropriate FELs with 
corresponding production volumes to calculate emission credits for the 
model year, as described in subpart H of this part.

[73 37243, June 30, 2008, as amended at 75 FR 23001, Apr. 30, 2010]



Sec. 1042.230  Engine families.

    (a) For purposes of certification, divide your product line into 
families of engines that are expected to have similar emission 
characteristics throughout the useful life as described in this section. 
You may not group engines in different engine categories in the same 
family. Your engine family is limited to a single model year.
    (b) For Category 1 engines, group engines in the same engine family 
if they are the same in all the following aspects:
    (1) The combustion cycle and the fuel with which the engine is 
intended or designed to be operated.
    (2) The cooling system (for example, raw-water vs. separate-circuit 
cooling).
    (3) Method of air aspiration.
    (4) Method of exhaust aftertreatment (for example, catalytic 
converter or particulate trap).
    (5) Combustion chamber design.
    (6) Nominal bore and stroke.
    (7) Cylinder arrangement (such as in-line vs. vee configurations). 
This applies for engines with aftertreatment devices only.
    (8) Method of control for engine operation other than governing 
(i.e., mechanical or electronic).
    (9) Application (commercial or recreational).
    (10) Numerical level of the emission standards that apply to the 
engine, except as allowed under paragraphs (f) and (g) of this section.
    (c) For Category 2 engines, group engines in the same engine family 
if they are the same in all the following aspects:
    (1) The combustion cycle (e.g., diesel cycle).
    (2) The fuel with which the engine is intended or designed to be 
operated and the fuel system configuration.
    (3) The cooling system (for example, air-cooled or water-cooled), 
and procedure(s) employed to maintain engine temperature within desired 
limits (thermostat, on-off radiator fans, radiator shutters, etc.).
    (4) The method of air aspiration (turbocharged, supercharged, 
naturally aspirated, Roots blown).
    (5) The turbocharger or supercharger general performance 
characteristics

[[Page 195]]

(e.g., approximate boost pressure, approximate response time, 
approximate size relative to engine displacement).
    (6) The type of air inlet cooler (air-to-air, air-to-liquid, 
approximate degree to which inlet air is cooled).
    (7) The type of exhaust aftertreatment system (oxidation catalyst, 
particulate trap), and characteristics of the aftertreatment system 
(catalyst loading, converter size vs. engine size).
    (8) The combustion chamber configuration and the surface-to-volume 
ratio of the combustion chamber when the piston is at top dead center 
position, using nominal combustion chamber dimensions.
    (9) Nominal bore and stroke dimensions.
    (10) The location of the piston rings on the piston.
    (11) The intake manifold induction port size and configuration.
    (12) The exhaust manifold port size and configuration.
    (13) The location of the intake and exhaust valves (or ports).
    (14) The size of the intake and exhaust valves (or ports).
    (15) The approximate intake and exhaust event timing and duration 
(valve or port).
    (16) The configuration of the fuel injectors and approximate 
injection pressure.
    (17) The type of fuel injection system controls (i.e., mechanical or 
electronic).
    (18) The overall injection timing characteristics, or as appropriate 
ignition timing characteristics (i.e., the deviation of the timing 
curves from the optimal fuel economy timing curve must be similar in 
degree).
    (19) The type of smoke control system.
    (d) For Category 3 engines, group engines into engine families based 
on the criteria specified in Section 4.3 of the NOX Technical 
Code (incorporated by reference in Sec. 1042.910), except as allowed in 
paragraphs (e) and (f) of this section.
    (e) You may subdivide a group of engines that is identical under 
paragraph (b) or (c) of this section into different engine families if 
you show the expected emission characteristics are different during the 
useful life. However, for the purpose of applying small-volume family 
provisions of this part, we will consider the otherwise applicable 
engine family criteria of this section.
    (f) You may group engines that are not identical with respect to the 
things listed in paragraph (b), (c), or (d) of this section in the same 
engine family, as follows:
    (1) In unusual circumstances, you may group such engines in the same 
engine family if you show that their emission characteristics during the 
useful life will be similar.
    (2) If you are a small-volume engine manufacturer, you may group any 
Category 1 engines into a single engine family or you may group any 
Category 2 engines into a single engine family. This also applies if you 
are a post-manufacture marinizer modifying a base engine that has a 
valid certificate of conformity for any kind of nonroad or heavy-duty 
highway engine under this chapter.
    (3) The provisions of this paragraph (f) do not exempt any engines 
from meeting the standards and requirements in subpart B of this part.
    (g) If you combine engines that are subject to different emission 
standards into a single engine family under paragraph (f) of this 
section, you must certify the engine family to the more stringent set of 
standards for that model year. For Category 3 engine families that 
include a range of maximum in-use engine speeds, use the highest value 
of maximum in-use engine speed to establish the applicable 
NOX emission standard.

[73 37243, June 30, 2008, as amended at 75 FR 23001, Apr. 30, 2010]



Sec. 1042.235  Emission testing related to certification.

    This section describes the emission testing you must perform to show 
compliance with the emission standards in Sec. 1042.101(a) or Sec. 
1042.104. See Sec. 1042.205(p) regarding emission testing related to 
the NTE standards. See Sec. Sec. 1042.240 and 1042.245 and 40 CFR part 
1065, subpart E, regarding service accumulation before emission testing. 
See Sec. 1042.655 for special testing provisions available for Category 
3 engines subject to Tier 3 standards.

[[Page 196]]

    (a) Select an emission-data engine from each engine family for 
testing. For engines at or above 560 kW, you may use a development 
engine that is equivalent in design to the engine being certified. For 
Category 3 engines, you may use a single-cylinder version of the engine. 
Using good engineering judgment, select the engine configuration most 
likely to exceed an applicable emission standard over the useful life, 
considering all exhaust emission constituents and the range of 
installation options available to vessel manufacturers.
    (b) Test your emission-data engines using the procedures and 
equipment specified in subpart F of this part.
    (c) We may measure emissions from any of your emission-data engines 
or other engines from the engine family, as follows:
    (1) We may decide to do the testing at your plant or any other 
facility. If we do this, you must deliver the engine to a test facility 
we designate. The engine you provide must include appropriate manifolds, 
aftertreatment devices, electronic control units, and other emission-
related components not normally attached directly to the engine block. 
If we do the testing at your plant, you must schedule it as soon as 
possible and make available the instruments, personnel, and equipment we 
need.
    (2) If we measure emissions from one of your engines, the results of 
that testing become the official emission results for the engine. Unless 
we later invalidate these data, we may decide not to consider your data 
in determining if your engine family meets applicable requirements.
    (3) Before we test one of your engines, we may set its adjustable 
parameters to any point within the specified adjustable ranges (see 
Sec. 1042.115(d)).
    (4) Before we test one of your engines, we may calibrate it within 
normal production tolerances for anything we do not consider an 
adjustable parameter. For example, this would apply for an engine 
parameter that is subject to production variability because it is 
adjustable during production, but is not considered an adjustable 
parameter (as defined in Sec. 1042.901) because it is permanently 
sealed.
    (d) You may ask to use carryover emission data from a previous model 
year instead of doing new tests, but only if all the following are true:
    (1) The engine family from the previous model year differs from the 
current engine family only with respect to model year or other 
characteristics unrelated to emissions. You may also ask to add a 
configuration subject to Sec. 1042.225.
    (2) The emission-data engine from the previous model year remains 
the appropriate emission-data engine under paragraph (b) of this 
section.
    (3) The data show that the emission-data engine would meet all the 
requirements that apply to the engine family covered by the application 
for certification. For engines originally tested under the provisions of 
40 CFR part 94, you may consider those test procedures to be equivalent 
to the procedures we specify in subpart F of this part.
    (e) We may require you to test a second engine of the same or 
different configuration in addition to the engine tested under paragraph 
(b) of this section.
    (f) If you use an alternate test procedure under 40 CFR 1065.10 and 
later testing shows that such testing does not produce results that are 
equivalent to the procedures specified in subpart F of this part, we may 
reject data you generated using the alternate procedure.
    (g) Measure CO2 with each low-hour certification test 
using the procedures specified in 40 CFR part 1065 starting in the 2011 
model year. Also measure CH4 from Category 1 and Category 2 
engines with each low-hour certification test using the procedures 
specified in 40 CFR part 1065 starting in the 2012 model year. Measure 
N2O from Category 1 and Category 2 engines with each low-hour 
certification test using the procedures specified in 40 CFR part 1065 
for any engine family that depends on NOx aftertreatment to meet 
emission standards. Small-volume engine manufacturers may omit 
measurement of N2O and CH4. These measurements are 
not required for NTE testing. Use the same units and modal calculations 
as for your other results to report a

[[Page 197]]

single weighted value for each constituent. Round the final values as 
follows:
    (1) Round CO2 to the nearest 1 g/kW-hr.
    (2) Round N2O to the nearest 0.001 g/kW-hr.
    (3) Round CH4 to the nearest 0.001 g/kW-hr.

[73 37243, June 30, 2008, as amended at 74 FR 56509, Oct. 30, 2009; 75 
FR 23002, Apr. 30, 2010]



Sec. 1042.240  Demonstrating compliance with exhaust emission standards.

    (a) For purposes of certification, your engine family is considered 
in compliance with the emission standards in Sec. 1042.101(a) or Sec. 
1042.104 if all emission-data engines representing that family have test 
results showing official emission results and deteriorated emission 
levels at or below these standards. This also applies for all test 
points for emission-data engines within the family used to establish 
deterioration factors. See paragraph (f) of this section for provisions 
related to demonstrating compliance with non-duty-cycle standards, such 
as NTE standards. Note that your FELs are considered to be the 
applicable emission standards with which you must comply if you 
participate in the ABT program in subpart H of this part.
    (b) Your engine family is deemed not to comply if any emission-data 
engine representing that family has test results showing an official 
emission result or a deteriorated emission level for any pollutant that 
is above an applicable emission standard. Similarly, your engine family 
is deemed not to comply if any emission-data engine representing that 
family has test results showing any emission level above the applicable 
not-to-exceed emission standard for any pollutant. This also applies for 
all test points for emission-data engines within the family used to 
establish deterioration factors.
    (c) To compare emission levels from the emission-data engine with 
the applicable emission standards, apply deterioration factors to the 
measured emission levels for each pollutant. Section 1042.245 specifies 
how to test your Category 1 or Category 2 engine to develop 
deterioration factors that represent the deterioration expected in 
emissions over your engines' full useful life. See paragraph (e) of this 
section for determining deterioration factors for Category 3 engines. 
Your deterioration factors must take into account any available data 
from in-use testing with similar engines. Small-volume engine 
manufacturers and post-manufacture marinizers may use assigned 
deterioration factors that we establish. Apply deterioration factors as 
follows:
    (1) Additive deterioration factor for exhaust emissions. Except as 
specified in paragraph (c)(2) of this section, use an additive 
deterioration factor for exhaust emissions. An additive deterioration 
factor is the difference between exhaust emissions at the end of the 
useful life and exhaust emissions at the low-hour test point. In these 
cases, adjust the official emission results for each tested engine at 
the selected test point by adding the factor to the measured emissions. 
If the deterioration factor is less than zero, use zero. Additive 
deterioration factors must be specified to one more decimal place than 
the applicable standard.
    (2) Multiplicative deterioration factor for exhaust emissions. Use a 
multiplicative deterioration factor if good engineering judgment calls 
for the deterioration factor for a pollutant to be the ratio of exhaust 
emissions at the end of the useful life to exhaust emissions at the low-
hour test point. For example, if you use aftertreatment technology that 
controls emissions of a pollutant proportionally to engine-out 
emissions, it is often appropriate to use a multiplicative deterioration 
factor. Adjust the official emission results for each tested engine at 
the selected test point by multiplying the measured emissions by the 
deterioration factor. If the deterioration factor is less than one, use 
one. A multiplicative deterioration factor may not be appropriate in 
cases where testing variability is significantly greater than engine-to-
engine variability. Multiplicative deterioration factors must be 
specified to one more significant figure than the applicable standard.
    (3) Deterioration factor for crankcase emissions. If your engine 
vents crankcase emissions to the exhaust or to the atmosphere, you must 
account for crankcase emission deterioration, using good engineering 
judgment. You

[[Page 198]]

may use separate deterioration factors for crankcase emissions of each 
pollutant (either multiplicative or additive) or include the effects in 
combined deterioration factors that include exhaust and crankcase 
emissions together for each pollutant.
    (d) Collect emission data using measurements to one more decimal 
place than the applicable standard. Apply the deterioration factor to 
the official emission result, as described in paragraph (c) of this 
section, then round the adjusted figure to the same number of decimal 
places as the emission standard. Compare the rounded emission levels to 
the emission standard for each emission-data engine. In the case of 
NOX+HC standards, apply the deterioration factor to each 
pollutant and then add the results before rounding.
    (e) For Category 3 engines, determine a deterioration factor based 
on an engineering analysis. The engineering analysis must describe how 
the measured emission levels from the emission-data engine show that 
engines comply with applicable emission standards throughout the useful 
life. Include this analysis in your application for certification and 
add a statement that all data, analyses, evaluations, and other 
information you used are available for our review upon request.
    (f) For NTE standards and mode caps, use good engineering judgment 
to demonstrate compliance throughout the useful life. You may, but are 
not required to, apply the same deterioration factors used to show 
compliance with the applicable duty-cycle standards. We will deny your 
application for certification if we determine that your test data show 
that your engines would exceed one or more NTE standard or mode cap 
during their useful lives.

[73 37243, June 30, 2008, as amended at 75 FR 23002, Apr. 30, 2010]



Sec. 1042.245  Deterioration factors.

    This section describes how to determine deterioration factors for 
Category 1 and Category 2 engines, either with an engineering analysis, 
with pre-existing test data, or with new emission measurements. Apply 
these deterioration factors to determine whether your engines will meet 
the duty-cycle emission standards throughout the useful life as 
described in Sec. 1042.240. This section does not apply for Category 3 
engines.
    (a) You may ask us to approve deterioration factors for an engine 
family with established technology based on engineering analysis instead 
of testing. Engines certified to a NOX+HC standard or FEL 
greater than the Tier 3 NOX+HC standard are considered to 
rely on established technology for control of gaseous emissions, except 
that this does not include any engines that use exhaust-gas 
recirculation or aftertreatment. In most cases, technologies used to 
meet the Tier 1 and Tier 2 emission standards would qualify as 
established technology. We must approve your plan to establish a 
deterioration factor under this paragraph (a) before you submit your 
application for certification.
    (b) You may ask us to approve deterioration factors for an engine 
family based on emission measurements from similar highway, stationary, 
or nonroad engines (including locomotive engines or other marine 
engines) if you have already given us these data for certifying the 
other engines in the same or earlier model years. Use good engineering 
judgment to decide whether the two engines are similar. We must approve 
your plan to establish a deterioration factor under this paragraph (b) 
before you submit your application for certification. We will approve 
your request if you show us that the emission measurements from other 
engines reasonably represent in-use deterioration for the engine family 
for which you have not yet determined deterioration factors.
    (c) If you are unable to determine deterioration factors for an 
engine family under paragraph (a) or (b) of this section, first get us 
to approve a plan for determining deterioration factors based on service 
accumulation and related testing. We will respond to your proposed plan 
within 45 days of receiving your request. Your plan must involve 
measuring emissions from an emission-data engine at least three times, 
which are evenly spaced over the service-accumulation period unless we 
specify otherwise, such that the resulting measurements and calculations

[[Page 199]]

will represent the deterioration expected from in-use engines over the 
full useful life. You may use extrapolation to determine deterioration 
factors once you have established a trend of changing emissions with age 
for each pollutant. You may use an engine installed in a vessel to 
accumulate service hours instead of running the engine only in the 
laboratory. You may perform maintenance on emission-data engines as 
described in Sec. 1042.125 and 40 CFR part 1065, subpart E.
    (d) Include the following information in your application for 
certification:
    (1) If you determine your deterioration factors based on test data 
from a different engine family, explain why this is appropriate and 
include all the emission measurements on which you base the 
deterioration factor.
    (2) If you determine your deterioration factors based on engineering 
analysis, explain why this is appropriate and include a statement that 
all data, analyses, evaluations, and other information you used are 
available for our review upon request.
    (3) If you do testing to determine deterioration factors, describe 
the form and extent of service accumulation, including a rationale for 
selecting the service-accumulation period and the method you use to 
accumulate hours.

[73 37243, June 30, 2008, as amended at 75 FR 23003, Apr. 30, 2010]



Sec. 1042.250  Recordkeeping and reporting.

    (a) Send the Designated Compliance Officer information related to 
your U.S.-directed production volumes as described in Sec. 1042.345. In 
addition, within 45 days after the end of the model year, you must send 
us a report describing information about engines you produced during the 
model year as follows:
    (1) State the total production volume for each engine family that is 
not subject to reporting under Sec. 1042.345.
    (2) State the total production volume for any engine family for 
which you produce engines after completing the reports required in Sec. 
1042.345.
    (b) Organize and maintain the following records:
    (1) A copy of all applications and any summary information you send 
us.
    (2) Any of the information we specify in Sec. 1042.205 that you 
were not required to include in your application.
    (3) A detailed history of each emission-data engine. For each 
engine, describe all of the following:
    (i) The emission-data engine's construction, including its origin 
and buildup, steps you took to ensure that it represents production 
engines, any components you built specially for it, and all the 
components you include in your application for certification.
    (ii) How you accumulated engine operating hours (service 
accumulation), including the dates and the number of hours accumulated.
    (iii) All maintenance, including modifications, parts changes, and 
other service, and the dates and reasons for the maintenance.
    (iv) All your emission tests (valid and invalid), including 
documentation on routine and standard tests, as specified in part 40 CFR 
part 1065, and the date and purpose of each test.
    (v) All tests to diagnose engine or emission control performance, 
giving the date and time of each and the reasons for the test.
    (vi) Any other significant events.
    (4) Production figures for each engine family divided by assembly 
plant.
    (5) Keep a list of engine identification numbers for all the engines 
you produce under each certificate of conformity.
    (c) Keep data from routine emission tests (such as test cell 
temperatures and relative humidity readings) for one year after we issue 
the associated certificate of conformity. Keep all other information 
specified in this section for eight years after we issue your 
certificate.
    (d) Store these records in any format and on any media, as long as 
you can promptly send us organized, written records in English if we ask 
for them. You must keep these records readily available. We may review 
them at any time.

[73 37243, June 30, 2008, as amended at 75 FR 23003, Apr. 30, 2010]



Sec. 1042.255  EPA decisions.

    (a) If we determine your application is complete and shows that the 
engine family meets all the requirements of

[[Page 200]]

this part and the Clean Air Act, we will issue a certificate of 
conformity for your engine family for that model year. We may make the 
approval subject to additional conditions.
    (b) We may deny your application for certification if we determine 
that your engine family fails to comply with emission standards or other 
requirements of this part or the Clean Air Act. We will base our 
decision on all available information. If we deny your application, we 
will explain why in writing.
    (c) In addition, we may deny your application or suspend or revoke 
your certificate if you do any of the following:
    (1) Refuse to comply with any testing or reporting requirements.
    (2) Submit false or incomplete information (paragraph (e) of this 
section applies if this is fraudulent).
    (3) Render inaccurate any test data.
    (4) Deny us from completing authorized activities (see 40 CFR 
1068.20). This includes a failure to provide reasonable assistance.
    (5) Produce engines for importation into the United States at a 
location where local law prohibits us from carrying out authorized 
activities.
    (6) Fail to supply requested information or amend your application 
to include all engines being produced.
    (7) Take any action that otherwise circumvents the intent of the 
Clean Air Act or this part.
    (d) We may void your certificate if you do not keep the records we 
require or do not give us information as required under this part or the 
Clean Air Act.
    (e) We may void your certificate if we find that you intentionally 
submitted false or incomplete information.
    (f) If we deny your application or suspend, revoke, or void your 
certificate, you may ask for a hearing (see Sec. 1042.920).

[73 37243, June 30, 2008, as amended at 75 FR 23003, Apr. 30, 2010]



                Subpart D_Testing Production-line Engines



Sec. 1042.301  General provisions.

    (a) If you produce engines that are subject to the requirements of 
this part, you must test them as described in this subpart, except as 
follows:
    (1) Small-volume engine manufacturers may omit testing under this 
subpart.
    (2) We may exempt Category 1 engine families with a projected U.S.-
directed production volume below 100 engines from routine testing under 
this subpart. Request this exemption in your application for 
certification and include your basis for projecting a production volume 
below 100 units. We will approve your request if we agree that you have 
made good-faith estimates of your production volumes. Your exemption is 
approved when we grant your certificate. You must promptly notify us if 
your actual production exceeds 100 units during the model year. If you 
exceed the production limit or if there is evidence of a nonconformity, 
we may require you to test production-line engines under this subpart, 
or under 40 CFR part 1068, subpart E, even if we have approved an 
exemption under this paragraph (a)(2).
    (3) [Reserved]
    (b) We may suspend or revoke your certificate of conformity for 
certain engine families if your production-line engines do not meet the 
requirements of this part or you do not fulfill your obligations under 
this subpart (see Sec. Sec. 1042.325 and 1042.340).
    (c) Other regulatory provisions authorize us to suspend, revoke, or 
void your certificate of conformity, or order recalls for engine 
families, without regard to whether they have passed these production-
line testing requirements. The requirements of this subpart do not 
affect our ability to do selective enforcement audits, as described in 
40 CFR part 1068. Individual engines in families that pass these 
production-line testing requirements must also conform to all applicable 
regulations of this part and 40 CFR part 1068.
    (d) You may use alternate programs or measurement methods for 
testing production-line engines in the following circumstances:
    (1) [Reserved]
    (2) You may test your engines using the CumSum procedures specified 
in 40 CFR part 1045 or 1051 instead of the procedures specified in this 
subpart, except that the threshold for establishing

[[Page 201]]

quarterly or annual test periods is based on U.S.-directed production 
volumes of 800 instead of 1600. This alternate program does not require 
prior approval.
    (3) You may ask to use another alternate program or measurement 
method for testing production-line engines. In your request, you must 
show us that the alternate program gives equal assurance that your 
engines meet the requirements of this part. We may waive some or all of 
this subpart's requirements if we approve your alternate program.
    (e) If you certify a Category 1 or Category 2 engine family with 
carryover emission data, as described in Sec. 1042.235(d), and these 
equivalent engine families consistently pass the production-line testing 
requirements over the preceding two-year period, you may ask for a 
reduced testing rate for further production-line testing for that 
family. The minimum testing rate is one engine per engine family. If we 
reduce your testing rate, we may limit our approval to any number of 
model years. In determining whether to approve your request, we may 
consider the number of engines that have failed the emission tests.
    (f) We may ask you to make a reasonable number of production-line 
engines available for a reasonable time so we can test or inspect them 
for compliance with the requirements of this part. For Category 3 
engines, you are not required to deliver engines to us, but we may 
inspect and test your engines at any facility at which they are 
assembled or installed in vessels.

[73 37243, June 30, 2008, as amended at 75 FR 23003, Apr. 30, 2010]



Sec. 1042.302  Applicability of this subpart for Category 3 engines.

    If you produce Tier 3 or later Category 3 engines that are certified 
under this part, you must test them as described in this subpart, except 
as specified in this section.
    (a) You must test each engine at the sea trial of the vessel in 
which it is installed or within the first 300 hours of operation, 
whichever occurs first. Since you must test each engine, the provisions 
of Sec. Sec. 1042.310 and 1042.315(b) do not apply for Category 3 
engines. If we determine that an engine failure under this subpart is 
caused by defective components or design deficiencies, we may revoke or 
suspend your certificate for the engine family as described in Sec. 
1042.340. If we determine that an engine failure under this subpart is 
caused only by incorrect assembly, we may suspend your certificate for 
the engine family as described in Sec. 1042.325. If the engine fails, 
you may continue operating only to complete the sea trial and return to 
port. It is a violation of 40 CFR 1068.101(b)(1) to operate the vessel 
further until you remedy the cause of failure. Each two-hour period of 
such operation constitutes a separate offense. A violation lasting less 
than two hours constitutes a single offense.
    (b) You are only required to measure NOX emissions. You 
do not need to measure HC, CO or PM emissions under this subpart.
    (c) If you are unable to operate the engine at the test points for 
the specified duty cycle, you may approximate these points consistent 
with the specifications of section 6 of Appendix 8 to the NOX 
Technical Code (incorporated by reference in Sec. 1042.910) and show 
compliance with the alternate installed-engine standard of Sec. 
1042.104(g). You must obtain EPA approval of your test procedure prior 
to testing the engine. Include in your request a description of your 
basis for concluding that the engine cannot be tested at the actual test 
points of the specified duty cycle.
    (d) You may measure NOX emissions at additional test 
points for the purposes of the continuous NOX monitoring 
requirements of Sec. 1042.110(d). If you do, you must report these 
values along with your other test results. Describe in your application 
for certification how you plan to use these values for continuous 
NOX monitoring.
    (e) You may ask to measure emissions according to the Direct 
Measurement and Monitoring method specified in section 6.4 of the 
NOX Technical Code (incorporated by reference in Sec. 
1042.910).

[75 FR 23003, Apr. 30, 2010]

[[Page 202]]



Sec. 1042.305  Preparing and testing production-line engines.

    This section describes how to prepare and test production-line 
engines. You must assemble the test engine in a way that represents the 
assembly procedures for other engines in the engine family. You must ask 
us to approve any deviations from your normal assembly procedures for 
other production engines in the engine family.
    (a) Test procedures. Test your production-line engines using the 
applicable testing procedures in subpart F of this part to show you meet 
the duty-cycle emission standards in subpart B of this part. For 
Category 1 and Category 2 engines, the not-to-exceed standards apply for 
this testing of Category 1 and Category 2 engines, but you need not do 
additional testing to show that production-line engines meet the not-to-
exceed standards. The mode cap standards apply for the testing of 
Category 3 engines.
    (b) Modifying a test engine. Once an engine is selected for testing 
(see Sec. 1042.310), you may adjust, repair, prepare, or modify it or 
check its emissions only if one of the following is true:
    (1) You document the need for doing so in your procedures for 
assembling and inspecting all your production engines and make the 
action routine for all the engines in the engine family.
    (2) This subpart otherwise specifically allows your action.
    (3) We approve your action in advance.
    (c) Engine malfunction. If an engine malfunction prevents further 
emission testing, ask us to approve your decision to either repair the 
engine or delete it from the test sequence.
    (d) Setting adjustable parameters. Before any test, we may require 
you to adjust any adjustable parameter on a Category 1 engine to any 
setting within its physically adjustable range. We may adjust or require 
you to adjust any adjustable parameter on a Category 2 or Category 3 
engine to any setting within its specified adjustable range.
    (1) We may require you to adjust idle speed outside the physically 
adjustable range as needed, but only until the engine has stabilized 
emission levels (see paragraph (e) of this section). We may ask you for 
information needed to establish an alternate minimum idle speed.
    (2) We may specify adjustments within the physically adjustable 
range or the specified adjustable range by considering their effect on 
emission levels. We may also consider how likely it is that someone will 
make such an adjustment with in-use engines.
    (e) Stabilizing emission levels. You may stabilize emission levels 
(or establish a Green Engine Factor for Category 2 engines) before you 
test production-line engines, as follows:
    (1) You may stabilize emission levels by operating the engine in a 
way that represents the way production engines will be used, using good 
engineering judgment, for no more than the greater of two periods:
    (i) 300 hours.
    (ii) The number of hours you operated your emission-data engine for 
certifying the engine family (see 40 CFR part 1065, subpart E, or the 
applicable regulations governing how you should prepare your test 
engine).
    (2) For Category 2 or Category 3 engines, you may ask us to approve 
a Green Engine Factor for each regulated pollutant for each engine 
family. Use the Green Engine Factor to adjust measured emission levels 
to establish a stabilized low-hour emission level.
    (f) Damage during shipment. If shipping an engine to a remote 
facility for production-line testing makes necessary an adjustment or 
repair, you must wait until after the initial emission test to do this 
work. We may waive this requirement if the test would be impossible or 
unsafe, or if it would permanently damage the engine. Report to us in 
your written report under Sec. 1042.345 all adjustments or repairs you 
make on test engines before each test.
    (g) Retesting after invalid tests. You may retest an engine if you 
determine an emission test is invalid under subpart F of this part. 
Explain in your written report reasons for invalidating any test and the 
emission results from all tests. If we determine that you improperly 
invalidated a test, we may require you to ask for our approval for

[[Page 203]]

future testing before substituting results of the new tests for invalid 
ones.

[73 37243, June 30, 2008, as amended at 75 FR 23004, Apr. 30, 2010]



Sec. 1042.310  Engine selection for Category 1 and Category 2 engines.

    (a) Determine minimum sample sizes as follows:
    (1) For Category 1 engines, the minimum sample size is one engine or 
one percent of the projected U.S.-directed production volume for all 
your Category 1 engine families, whichever is greater.
    (2) For Category 2 engines, the minimum sample size is one engine or 
one percent of the projected U.S.-directed production volume for all 
your Category 2 engine families, whichever is greater.
    (b) Randomly select one engine from each engine family early in the 
model year. For further testing to reach the minimum sample size, 
randomly select a proportional sample from each engine family, with 
testing distributed evenly over the course of the model year, unless we 
specify a different schedule for your tests. For example, we may require 
you to disproportionately select engines from the early part of a model 
year for a new engine model that has not previously been subject to 
production-line testing.
    (c) For each engine that fails to meet emission standards, test two 
engines from the same engine family from the next fifteen engines 
produced or within seven days, whichever is later. If an engine fails to 
meet emission standards for any pollutant, count it as a failing engine 
under this paragraph (c).
    (d) Continue testing until one of the following things happens:
    (1) You test the number of engines specified in paragraphs (a) and 
(c) of this section.
    (2) The engine family does not comply according to Sec. 1042.315 or 
you choose to declare that the engine family does not comply with the 
requirements of this subpart.
    (3) You test 30 engines from the engine family.
    (e) You may elect to test more randomly chosen engines than we 
require under this section.



Sec. 1042.315  Determining compliance.

    This section describes the pass-fail criteria for the production-
line testing requirements. We apply these criteria on an engine-family 
basis. See Sec. 1042.320 for the requirements that apply to individual 
engines that fail a production-line test.
    (a) Calculate your test results as follows:
    (1) Initial and final test results. Calculate and round the test 
results for each engine. If you do several tests on an engine, calculate 
the initial results for each test, then add all the test results 
together and divide by the number of tests. Round this final calculated 
value for the final test results on that engine. Include the Green 
Engine Factor to determine low-hour emission results, if applicable.
    (2) Final deteriorated test results. Apply the deterioration factor 
for the engine family to the final test results (see Sec. 1042.240(c)).
    (3) Round deteriorated test results. Round the results to the number 
of decimal places in the emission standard expressed to one more decimal 
place.
    (b) For Category 1 and Category 2 engines, if a production-line 
engine fails to meet emission standards and you test two additional 
engines as described in Sec. 1042.310, calculate the average emission 
level for each pollutant for the three engines. If the calculated 
average emission level for any pollutant exceeds the applicable emission 
standard, the engine family fails the production-line testing 
requirements of this subpart. Tell us within ten working days if this 
happens. You may request to amend the application for certification to 
raise the FEL of the engine family as described in Sec. 1042.225(f).

[73 37243, June 30, 2008, as amended at 75 FR 23004, Apr. 30, 2010]



Sec. 1042.320  What happens if one of my production-line engines fails to meet emission standards?

    (a) If you have a production-line engine with final deteriorated 
test results exceeding one or more emission standards (see Sec. 
1042.315(a)), the certificate of conformity is automatically suspended 
for that failing engine. You must take

[[Page 204]]

the following actions before your certificate of conformity can cover 
that engine:
    (1) Correct the problem and retest the engine to show it complies 
with all emission standards.
    (2) Include the test results and describe the remedy for each engine 
in the written report required under Sec. 1042.345.
    (b) You may request to amend the application for certification to 
raise the FEL of the entire engine family at this point (see Sec. 
1042.225).
    (c) For catalyst-equipped engines, you may ask us to allow you to 
exclude an initial failed test if all of the following are true:
    (1) The catalyst was in a green condition when tested initially.
    (2) The engine met all emission standards when retested after 
degreening the catalyst.
    (3) No additional emission-related maintenance or repair was 
performed between the initial failed test and the subsequent passing 
test.

[73 37243, June 30, 2008, as amended at 75 FR 23004, Apr. 30, 2010]



Sec. 1042.325  What happens if an engine family fails the production-line testing requirements?

    (a) We may suspend your certificate of conformity for an engine 
family if it fails under Sec. 1042.315. The suspension may apply to all 
facilities producing engines from an engine family, even if you find 
noncompliant engines only at one facility.
    (b) We will tell you in writing if we suspend your certificate in 
whole or in part. We will not suspend a certificate until at least 15 
days after the engine family fails. The suspension is effective when you 
receive our notice.
    (c) Up to 15 days after we suspend the certificate for an engine 
family, you may ask for a hearing (see Sec. 1042.920). If we agree 
before a hearing occurs that we used erroneous information in deciding 
to suspend the certificate, we will reinstate the certificate.
    (d) Section 1042.335 specifies steps you must take to remedy the 
cause of the engine family's production-line failure. All the engines 
you have produced since the end of the last test period are presumed 
noncompliant and should be addressed in your proposed remedy. We may 
require you to apply the remedy to engines produced earlier if we 
determine that the cause of the failure is likely to have affected the 
earlier engines.
    (e) You may request to amend the application for certification to 
raise the FEL of the entire engine family before or after we suspend 
your certificate as described in Sec. 1042.225(f). We will approve your 
request if the failure is not caused by a defect and it is clear that 
you used good engineering judgment in establishing the original FEL.

[73 37243, June 30, 2008, as amended at 75 FR 23004, Apr. 30, 2010]



Sec. 1042.330  Selling engines from an engine family with a suspended certificate of conformity.

    You may sell engines that you produce after we suspend the engine 
family's certificate of conformity under Sec. 1042.315 only if one of 
the following occurs:
    (a) You test each engine you produce and show it complies with 
emission standards that apply.
    (b) We conditionally reinstate the certificate for the engine 
family. We may do so if you agree to recall all the affected engines and 
remedy any noncompliance at no expense to the owner if later testing 
shows that the engine family still does not comply.



Sec. 1042.335  Reinstating suspended certificates.

    (a) Send us a written report asking us to reinstate your suspended 
certificate. In your report, identify the reason for noncompliance, 
propose a remedy for the engine family, and commit to a date for 
carrying it out. In your proposed remedy include any quality control 
measures you propose to keep the problem from happening again.
    (b) Give us data from production-line testing that shows the 
remedied engine family complies with all the emission standards that 
apply.



Sec. 1042.340  When may EPA revoke my certificate under this subpart and 

how may I sell these engines again?

    (a) We may revoke your certificate for an engine family in the 
following cases:

[[Page 205]]

    (1) You do not meet the reporting requirements.
    (2) Your engine family fails to comply with the requirements of this 
subpart and your proposed remedy to address a suspended certificate 
under Sec. 1042.325 is inadequate to solve the problem or requires you 
to change the engine's design or emission control system.
    (b) To sell engines from an engine family with a revoked certificate 
of conformity, you must modify the engine family and then show it 
complies with the requirements of this part.
    (1) If we determine your proposed design change may not control 
emissions for the engine's full useful life, we will tell you within 
five working days after receiving your report. In this case we will 
decide whether production-line testing will be enough for us to evaluate 
the change or whether you need to do more testing.
    (2) Unless we require more testing, you may show compliance by 
testing production-line engines as described in this subpart.
    (3) We will issue a new or updated certificate of conformity when 
you have met these requirements.



Sec. 1042.345  Reporting.

    (a) Within 45 days of the end of each quarter in which production-
line testing occurs, send us a report with the following information:
    (1) Describe any facility used to test production-line engines and 
state its location.
    (2) State the total U.S.-directed production volume and number of 
tests for each engine family.
    (3) Describe how you randomly selected engines.
    (4) Describe each test engine, including the engine family's 
identification and the engine's model year, build date, model number, 
identification number, and number of hours of operation before testing. 
Also describe how you developed and applied the Green Engine Factor, if 
applicable.
    (5) Identify how you accumulated hours of operation on the engines 
and describe the procedure and schedule you used.
    (6) Provide the test number; the date, time and duration of testing; 
test procedure; all initial test results; final test results; and final 
deteriorated test results for all tests. Provide the emission results 
for all measured pollutants. Include information for both valid and 
invalid tests and the reason for any invalidation.
    (7) Describe completely and justify any nonroutine adjustment, 
modification, repair, preparation, maintenance, or test for the test 
engine if you did not report it separately under this subpart. Include 
the results of any emission measurements, regardless of the procedure or 
type of engine.
    (8) Report on each failed engine as described in Sec. 1042.320.
    (9) Identify when the model year ends for each engine family.
    (b) We may ask you to add information to your written report so we 
can determine whether your new engines conform with the requirements of 
this subpart. We may also ask you to send less information.
    (c) An authorized representative of your company must sign the 
following statement:

    We submit this report under sections 208 and 213 of the Clean Air 
Act. Our production-line testing conformed completely with the 
requirements of 40 CFR part 1042. We have not changed production 
processes or quality-control procedures for test engines in a way that 
might affect emission controls. All the information in this report is 
true and accurate to the best of my knowledge. I know of the penalties 
for violating the Clean Air Act and the regulations. (Authorized Company 
Representative)

    (d) Send electronic reports of production-line testing to the 
Designated Compliance Officer using an approved information format. If 
you want to use a different format, send us a written request with 
justification for a waiver.
    (e) We will send copies of your reports to anyone from the public 
who asks for them. See Sec. 1042.915 for information on how we treat 
information you consider confidential.

[73 37243, June 30, 2008, as amended at 75 FR 23004, Apr. 30, 2010]



Sec. 1042.350  Recordkeeping.

    (a) Organize and maintain your records as described in this section. 
We may review your records at any time.

[[Page 206]]

    (b) Keep paper or electronic records of your production-line testing 
for eight years after you complete all the testing required for an 
engine family in a model year.
    (c) Keep a copy of the written reports described in Sec. 1042.345.
    (d) Keep the following additional records:
    (1) A description of all test equipment for each test cell that you 
can use to test production-line engines.
    (2) The names of supervisors involved in each test.
    (3) The name of anyone who authorizes adjusting, repairing, 
preparing, or modifying a test engine and the names of all supervisors 
who oversee this work.
    (4) If you shipped the engine for testing, the date you shipped it, 
the associated storage or port facility, and the date the engine arrived 
at the testing facility.
    (5) Any records related to your production-line tests that are not 
in the written report.
    (6) A brief description of any significant events during testing not 
otherwise described in the written report or in this section.
    (7) Any information specified in Sec. 1042.345 that you do not 
include in your written reports.
    (e) If we ask, you must give us a more detailed description of 
projected or actual production figures for an engine family. We may ask 
you to divide your production figures by maximum engine power, 
displacement, fuel type, or assembly plant (if you produce engines at 
more than one plant).
    (f) Keep records of the engine identification number for each engine 
you produce under each certificate of conformity. You may identify these 
numbers as a range. Give us these records within 30 days if we ask for 
them.
    (g) We may ask you to keep or send other information necessary to 
implement this subpart.

[73 37243, June 30, 2008, as amended at 75 FR 23004, Apr. 30, 2010]



                        Subpart E_In-use Testing



Sec. 1042.401  General Provisions.

    We may perform in-use testing of any engine subject to the standards 
of this part.



                        Subpart F_Test Procedures



Sec. 1042.501  How do I run a valid emission test?

    (a) Use the equipment and procedures for compression-ignition 
engines in 40 CFR part 1065 to determine whether engines meet the duty-
cycle emission standards in Sec. Sec. 1042.101 or 1042.104. Measure the 
emissions of all regulated pollutants as specified in 40 CFR part 1065. 
Use the applicable duty cycles specified in Sec. 1042.505.
    (b) Section 1042.515 describes the supplemental test procedures for 
evaluating whether engines meet the not-to-exceed emission standards in 
Sec. 1042.101(c).
    (c) Use the fuels and lubricants specified in 40 CFR part 1065, 
subpart H, for all the testing we require in this part, except as 
specified in this section and Sec. 1042.515.
    (1) For service accumulation, use the test fuel or any commercially 
available fuel that is representative of the fuel that in-use engines 
will use.
    (2) For diesel-fueled engines, use the appropriate diesel fuel 
specified in 40 CFR part 1065, subpart H, for emission testing. Unless 
we specify otherwise, the appropriate diesel test fuel for Category 1 
and Category 2 engines is the ultra low-sulfur diesel fuel. If we allow 
you to use a test fuel with higher sulfur levels, identify the test fuel 
in your application for certification. Unless we specify otherwise, the 
appropriate diesel test fuel for Category 3 engines is the high-sulfur 
diesel fuel. For Category 2 and Category 3 engines, you may ask to use 
commercially available diesel fuel similar but not necessarily identical 
to the applicable fuel specified in 40 CFR part 1065, subpart H; we will 
approve your request if you show us that it does not affect your ability 
to demonstrate compliance with the applicable emission standards.
    (3) For Category 1 and Category 2 engines that are expected to use a 
type of fuel (or mixed fuel) other than diesel

[[Page 207]]

fuel (such as natural gas, methanol, or residual fuel), use a 
commercially available fuel of that type for emission testing. If a 
given engine is designed to operate on different fuels, we may (at our 
discretion) require testing on each fuel. Propose test fuel 
specifications that take into account the engine design and the 
properties of commercially available fuels. Describe these test fuel 
specifications in the application for certification.
    (d) You may use special or alternate procedures to the extent we 
allow them under 40 CFR 1065.10.
    (e) This subpart is addressed to you as a manufacturer, but it 
applies equally to anyone who does testing for you, and to us when we 
perform testing to determine if your engines meet emission standards.
    (f) Duty-cycle testing is limited to ambient temperatures of 20 to 
30 [deg]C. Atmospheric pressure must be between 91.000 and 103.325 kPa, 
and must be within 5 percent of the value recorded 
at the time of the last engine map. Testing may be performed with any 
ambient humidity level. Correct duty-cycle NOX emissions for 
humidity as specified in 40 CFR part 1065.
    (g) For Category 3 engines, instead of test data collected as 
specified in 40 CFR part 1065, you may submit test data for 
NOX, HC, and CO emissions that were collected as specified in 
the NOX Technical Code (incorporated by reference in Sec. 
1042.910). For example, this allowance includes the allowance to perform 
the testing using test fuels allowed under the NOX Technical 
Code that do not meet the sulfur specifications of this section. We may 
require you to include a brief engineering analysis showing how these 
data demonstrate that your engines would meet the applicable emission 
standards if you had used the test procedures specified in 40 CFR part 
1065.

[73 37243, June 30, 2008, as amended at 74 FR 56509, Oct. 30, 2009; 75 
FR 23005, Apr. 30, 2010]



Sec. 1042.505  Testing engines using discrete-mode or ramped-modal duty cycles.

    This section describes how to test engines under steady-state 
conditions. In some cases, we allow you to choose the appropriate 
steady-state duty cycle for an engine. In these cases, you must use the 
duty cycle you select in your application for certification for all 
testing you perform for that engine family. If we test your engines to 
confirm that they meet emission standards, we will use the duty cycles 
you select for your own testing. We may also perform other testing as 
allowed by the Clean Air Act.
    (a) You may perform steady-state testing with either discrete-mode 
or ramped-modal cycles, as follows:
    (1) For discrete-mode testing, sample emissions separately for each 
mode, then calculate an average emission level for the whole cycle using 
the weighting factors specified for each mode. Calculate cycle 
statistics and compare with the established criteria as specified in 40 
CFR 1065.514 to confirm that the test is valid. Operate the engine and 
sampling system as follows:
    (i) Engines with NOX aftertreatment. For engines that 
depend on aftertreatment to meet the NOX emission standard, 
operate the engine for 5-6 minutes, then sample emissions for 1-3 
minutes in each mode. You may extend the sampling time to improve 
measurement accuracy of PM emissions, using good engineering judgment. 
If you have a longer sampling time for PM emissions, calculate and 
validate cycle statistics separately for the gaseous and PM sampling 
periods.
    (ii) Engines without NOX aftertreatment. For other 
engines, operate the engine for at least 5 minutes, then sample 
emissions for at least 1 minute in each mode.
    (2) For ramped-modal testing, start sampling at the beginning of the 
first mode and continue sampling until the end of the last mode. 
Calculate emissions and cycle statistics the same as for transient 
testing as specified in 40 CFR part 1065, subpart G.
    (b) Measure emissions by testing the engine on a dynamometer with 
one of the following duty cycles (as specified) to determine whether it 
meets the emission standards in Sec. Sec. 1042.101 or 1042.104:
    (1) General cycle. Use the 4-mode duty cycle or the corresponding 
ramped-modal cycle described in paragraph (a) of Appendix II of this 
part for commercial propulsion marine engines that are

[[Page 208]]

used with (or intended to be used with) fixed-pitch propellers, 
propeller-law auxiliary engines, and any other engines for which the 
other duty cycles of this section do not apply. Use this duty cycle also 
for commercial variable-speed propulsion marine engines that are used 
with (or intended to be used with) controllable-pitch propellers or with 
electrically coupled propellers, unless these engines are not intended 
for sustained operation (e.g., for at least 30 minutes) at all four 
modes when installed in the vessel.
    (2) Recreational marine engines. Except as specified in paragraph 
(b)(3) of this section, use the 5-mode duty cycle or the corresponding 
ramped-modal cycle described in paragraph (b) of Appendix II of this 
part for recreational marine engines with maximum engine power at or 
above 37 kW.
    (3) Controllable-pitch and electrically coupled propellers. Use the 
4-mode duty cycle or the corresponding ramped-modal cycle described in 
paragraph (c) of Appendix II of this part for constant-speed propulsion 
marine engines that are used with (or intended to be used with) 
controllable-pitch propellers or with electrically coupled propellers. 
Use this duty cycle also for variable-speed propulsion marine engines 
that are used with (or intended to be used with) controllable-pitch 
propellers or with electrically coupled propellers if the duty cycles in 
paragraph (b)(1) and (b)(2) of this section do not apply.
    (4) Constant-speed auxiliary engines. Use the 5-mode duty cycle or 
the corresponding ramped-modal cycle described in 40 CFR part 1039, 
Appendix II, paragraph (a) for constant-speed auxiliary engines.
    (5) Variable-speed auxiliary engines. (i) Use the duty cycle 
specified in paragraph (b)(1) of this section for propeller-law 
auxiliary engines.
    (ii) Use the 6-mode duty cycle or the corresponding ramped-modal 
cycle described in 40 CFR part 1039, Appendix II, paragraph (b) for 
variable-speed auxiliary engines with maximum engine power below 19 kW 
that are not propeller-law engines.
    (iii) Use the 8-mode duty cycle or the corresponding ramped-modal 
cycle described in 40 CFR part 1039, Appendix III, paragraph (c) for 
variable-speed auxiliary engines with maximum engine power at or above 
19 kW that are not propeller-law engines.
    (c) During idle mode, operate the engine at its warm idle speed as 
described in 40 CFR part 1065.
    (d) For constant-speed engines whose design prevents full-load 
operation for extended periods, you may ask for approval under 40 CFR 
1065.10(c) to replace full-load operation with the maximum load for 
which the engine is designed to operate for extended periods.
    (e) See 40 CFR part 1065 for detailed specifications of tolerances 
and calculations.

[73 37243, June 30, 2008, as amended at 75 FR 23005, Apr. 30, 2010]



Sec. 1042.515  Test procedures related to not-to-exceed standards.

    (a) This section describes the procedures to determine whether your 
engines meet the not-to-exceed emission standards in Sec. 1042.101(c). 
These procedures may include any normal engine operation and ambient 
conditions that the engines may experience in use. Paragraphs (c) 
through (e) of this section define the limits of what we will consider 
normal engine operation and ambient conditions.
    (b) Measure emissions with one of the following procedures:
    (1) Remove the selected engines for testing in a laboratory. You may 
use an engine dynamometer to simulate normal operation, as described in 
this section. Use the equipment and procedures specified in 40 CFR part 
1065 to conduct laboratory testing.
    (2) Test the selected engines while they remain installed in a 
vessel. Use the equipment and procedures specified in 40 CFR part 1065 
subpart J, to conduct field testing. Use fuel meeting the specifications 
of 40 CFR part 1065, subpart H, or a fuel typical of what you would 
expect the engine to use in service.
    (c) Engine testing may occur under the following ranges of ambient 
conditions without correcting measured emission levels:
    (1) Atmospheric pressure must be between 96.000 and 103.325 kPa, 
except that manufacturers may test at lower atmospheric pressures if 
their test facility is located at an altitude that

[[Page 209]]

makes it impractical to stay within this range. This pressure range is 
intended to allow testing under most weather conditions at all altitudes 
up to 1,100 feet above sea level.
    (2) Ambient air temperature must be between 13 and 35 [deg]C (or 
between 13 [deg]C and 30 [deg]C for engines not drawing intake air 
directly from a space that could be heated by the engine).
    (3) Ambient water temperature must be between 5 and 27 [deg]C.
    (4) Ambient humidity must be between 7.1 and 10.7 grams of moisture 
per kilogram of dry air.
    (d) Engine testing may occur at any conditions expected during 
normal operation but that are outside the conditions described in 
paragraph (b) of this section, as long as measured values are corrected 
to be equivalent to the nearest end of the specified range, using good 
engineering judgment. Correct NOX emissions for humidity as 
specified in 40 CFR part 1065, subpart G.
    (e) The sampling period may not begin until the engine has reached 
stable operating temperatures. For example, this would include only 
engine operation after starting and after the engine thermostat starts 
modulating the engine's coolant temperature. The sampling period may not 
include engine starting.
    (f) Apply the NTE standards specified in Sec. 1042.101(c) to an 
engine family based on the zones and subzones corresponding to specific 
duty cycles and engine types as defined in Appendix III of this part. 
For an engine family certified to multiple duty cycles, the broadest 
applicable NTE zone applies for that family at the time of 
certification. Whenever an engine family is certified to multiple duty 
cycles and a specific engine from that family is tested for NTE 
compliance in use, determine the applicable NTE zone for that engine 
according to its in-use application. An engine family's NTE zone may be 
modified as follows:
    (1) You may ask us to approve a narrower NTE zone for an engine 
family at the time of certification, based on information such as how 
that engine family is expected to normally operate in use. For example, 
if an engine family is always coupled to a pump or jet drive, the engine 
might be able to operate only within a narrow range of engine speed and 
power.
    (2) You may ask us to approve a Limited Testing Region (LTR). An LTR 
is a region of engine operation, within the applicable NTE zone, where 
you have demonstrated that your engine family operates for no more than 
5.0 percent of its normal in-use operation, on a time-weighted basis. 
You must specify an LTR using boundaries based on engine speed and power 
(or torque), where the LTR boundaries must coincide with some portion of 
the boundary defining the overall NTE zone. Any emission data collected 
within an LTR for a time duration that exceeds 5.0 percent of the 
duration of its respective NTE sampling period (as defined in paragraph 
(c)(3) of this section) will be excluded when determining compliance 
with the applicable NTE standards. Any emission data collected within an 
LTR for a time duration of 5.0 percent or less of the duration of the 
respective NTE sampling period will be included when determining 
compliance with the NTE standards.
    (3) You must notify us if you design your engines for normal in-use 
operation outside the applicable NTE zone. If we learn that normal in-
use operation for your engines includes other speeds and loads, we may 
specify a broader NTE zone, as long as the modified zone is limited to 
normal in-use operation for speeds greater than 70 percent of maximum 
test speed and loads greater than 30 percent of maximum power at maximum 
test speed (or 30 percent of maximum test torque for constant-speed 
engines).
    (4) You may exclude emission data based on ambient or engine 
parameter limit values as follows:
    (i) NOX catalytic aftertreatment minimum temperature. For an engine 
equipped with a catalytic NOX aftertreatment system, exclude 
NOX emission data that is collected when the exhaust 
temperature is less than 250 [deg]C, as measured within 30 cm downstream 
of the last NOX aftertreatment device. Where there are 
parallel paths, measure the temperature 30 cm downstream of the last 
NOX aftertreatment device in the path with the greatest 
exhaust flow.

[[Page 210]]

    (ii) Oxidizing aftertreatment minimum temperature. For an engine 
equipped with an oxidizing catalytic aftertreatment system, exclude HC, 
CO, and PM emission data that is collected when the exhaust temperature 
is less than 250 [deg]C, as measured within 30 cm downstream of the last 
oxidizing aftertreatment device. Where there are parallel paths, measure 
the temperature 30 cm downstream of the last oxidizing aftertreatment 
device in the path with the greatest exhaust flow.
    (iii) Other parameters. You may request our approval for other 
minimum or maximum ambient or engine parameter limit values at the time 
of certification.
    (g) For engines equipped with emission controls that include 
discrete regeneration events, if a regeneration event occurs during the 
NTE test, the averaging period must be at least as long as the time 
between the events multiplied by the number of full regeneration events 
within the sampling period. This requirement applies only for engines 
that send an electronic signal indicating the start of the regeneration 
event.



Sec. 1042.520  What testing must I perform to establish deterioration factors?

    Sections 1042.240 and 1042.245 describe the required methods for 
testing to establish deterioration factors for an engine family.



Sec. 1042.525  How do I adjust emission levels to account for infrequently 

regenerating aftertreatment devices?

    This section describes how to adjust emission results from engines 
using aftertreatment technology with infrequent regeneration events. See 
paragraph (e) of this section for how to adjust ramped-modal testing. 
See paragraph (f) of this section for how to adjust discrete-mode 
testing. For this section, ``regeneration'' means an intended event 
during which emission levels change while the system restores 
aftertreatment performance. For example, exhaust gas temperatures may 
increase temporarily to remove sulfur from adsorbers or to oxidize 
accumulated particulate matter in a trap. For this section, 
``infrequent'' refers to regeneration events that are expected to occur 
on average less than once over the applicable transient duty cycle or 
ramped-modal cycle, or on average less than once per typical mode in a 
discrete-mode test.
    (a) Developing adjustment factors. Develop an upward adjustment 
factor and a downward adjustment factor for each pollutant based on 
measured emission data and observed regeneration frequency. Adjustment 
factors should generally apply to an entire engine family, but you may 
develop separate adjustment factors for different engine configurations 
within an engine family. If you use adjustment factors for 
certification, you must identify the frequency factor, F, from paragraph 
(b) of this section in your application for certification and use the 
adjustment factors in all testing for that engine family. You may use 
carryover or carry-across data to establish adjustment factors for an 
engine family, as described in Sec. 1042.235(d), consistent with good 
engineering judgment. All adjustment factors for regeneration are 
additive. Determine adjustment factors separately for different test 
segments. For example, determine separate adjustment factors for 
different modes of a discrete-mode steady-state test. You may use either 
of the following different approaches for engines that use 
aftertreatment with infrequent regeneration events:
    (1) You may disregard this section if regeneration does not 
significantly affect emission levels for an engine family (or 
configuration) or if it is not practical to identify when regeneration 
occurs. If you do not use adjustment factors under this section, your 
engines must meet emission standards for all testing, without regard to 
regeneration.
    (2) If your engines use aftertreatment technology with extremely 
infrequent regeneration and you are unable to apply the provisions of 
this section, you may ask us to approve an alternate methodology to 
account for regeneration events.
    (b) Calculating average adjustment factors. Calculate the average 
adjustment factor (EFA) based on the following equation:

EFA = (F)(EFH) + (1-F)(EFL)


[[Page 211]]


Where:

F = The frequency of the regeneration event during normal in-use 
          operation, expressed in terms of the fraction of equivalent 
          tests during which the regeneration occurs. You may determine 
          F from in-use operating data or running replicate tests. For 
          example, if you observe that the regeneration occurs 125 times 
          during 1,000 MW-hrs of operation, and your engine typically 
          accumulates 1 MW-hr per test, F would be (125) / (1,000) / (1) 
          = 0.125. No further adjustments, including weighting factors, 
          may be applied to F.
EFH = Measured emissions from a test segment in which the 
          regeneration occurs.
EFL = Measured emissions from a test segment in which the 
          regeneration does not occur.
    (c) Applying adjustment factors. Apply adjustment factors based on 
whether regeneration occurs during the test run. You must be able to 
identify regeneration in a way that is readily apparent during all 
testing.
    (1) If regeneration does not occur during a test segment, add an 
upward adjustment factor to the measured emission rate. Determine the 
upward adjustment factor (UAF) using the following equation:

UAF = EFA-EFL

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

DAF = EFH-EFA

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

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

    (e) Ramped-modal testing. Develop a single sets of adjustment 
factors for the entire test. If a regeneration has started but has not 
been completed when you reach the end of a test, use good engineering 
judgment to reduce your downward adjustments to be proportional to the 
emission impact that occurred in the test.
    (f) Discrete-mode testing. Develop separate adjustment factors for 
each test mode. If a regeneration has started but has not been completed 
when you reach the end of the sampling time for a test mode extend the 
sampling period for that mode until the regeneration is completed.
    (g) Category 3 engines. We may specify an alternate methodology to 
account for regeneration events from Category 3 engines. If we do not, 
the provisions of this section apply as specified.

[73 37243, June 30, 2008, as amended at 75 FR 23005, Apr. 30, 2010]



                 Subpart G_Special Compliance Provisions



Sec. 1042.601  General compliance provisions for marine engines and vessels.

    Engine and vessel manufacturers, as well as owners, operators, and 
rebuilders of engines and vessels subject to the requirements of this 
part, and all other persons, must observe the provisions of this part, 
the requirements and prohibitions in 40 CFR part 1068, and the 
provisions of the Clean Air Act. The provisions of 40 CFR part 1068 
apply for compression-ignition marine engines as specified in that part, 
subject to the following provisions:
    (a) The following prohibitions apply with respect to recreational 
marine engines and recreational vessels:
    (1) Installing a recreational marine engine in a vessel that is not 
a recreational vessel is a violation of 40 CFR 1068.101(a)(1).
    (2) For a vessel with an engine that is certified and labeled as a 
recreational marine engine, using it in a manner inconsistent with its 
intended use as a recreational vessel violates 40 CFR 1068.101(a)(1), 
except as allowed by this chapter.
    (b) Subpart I of this part describes how the prohibitions of 40 CFR 
1068.101(a)(1) apply for certain remanufactured engines. The provisions 
of 40 CFR 1068.105 do not allow the installation of a new remanufactured 
engine in a vessel that is defined as a new vessel unless the 
remanufactured engine is subject to the same standards as the

[[Page 212]]

standards applicable to freshly manufactured engines of the required 
model year.
    (c) The provisions of 40 CFR 1068.120 apply when rebuilding marine 
engines, except as specified in subpart I of this part. The following 
additional requirements also apply when rebuilding marine engines 
equipped with exhaust aftertreatment:
    (1) Follow all instructions from the engine manufacturer and 
aftertreatment manufacturer for checking, repairing, and replacing 
aftertreatment components. For example, you must replace the catalyst if 
the catalyst assembly is stamped with a build date more than ten years 
ago and the manufacturer's instructions state that catalysts over ten 
years old must be replaced when the engine is rebuilt.
    (2) Measure pressure drop across the catalyst assembly to ensure 
that it is neither higher nor lower than the manufacturer's 
specifications and repair or replace exhaust-system components as needed 
to bring the pressure drop within the manufacturer's specifications.
    (3) For engines equipped with exhaust sensors, verify that sensor 
outputs are within the manufacturer's recommended range and repair or 
replace any malfunctioning components (sensors, catalysts, or other 
components).
    (d) The provisions of Sec. 1042.635 for the national security 
exemption apply instead of 40 CFR 1068.225.
    (e) For replacement engines, apply the provisions of 40 CFR 1068.240 
as described in Sec. 1042.615.
    (f) For the purpose of meeting the defect-reporting requirements in 
40 CFR 1068.501, if you manufacture other nonroad engines that are 
substantially similar to your marine engines, you may consider defects 
using combined marine and non-marine families.
    (g) The selective enforcement audit provisions of 40 CFR part 1068 
do not apply for Category 3 engines.
    (h) The defect reporting requirements of 40 CFR 1068.501 apply for 
Category 3 engines, except the threshold for filing a defect report is 
two engines.
    (i) You may not circumvent the requirements of this part or the 
Clean Air Act by manufacturing a vessel outside the United States or 
initially flagging a vessel in another country. The definition of ``new 
marine engine'' in Sec. 1042.901 includes provisions for U.S.-flagged 
vessels that are manufactured or reflagged outside of U.S. waters. These 
provisions have the effect of applying the prohibitions of 40 CFR 
1068.101(a)(1) to such vessels no later than when they first enter U.S. 
waters. The inclusion of these provisions does not affect requirements 
or prohibitions of the Clean Air Act or other statutes that may apply to 
the vessel before it first enters U.S. waters.

[73 37243, June 30, 2008, as amended at 73 FR 59194, Oct. 8, 2008; 75 FR 
23005, Apr. 30, 2010]



Sec. 1042.605  Dressing engines already certified to other 

standards for nonroad or heavy-duty highway engines for marine use.

    (a) General provisions. If you are an engine manufacturer (including 
someone who marinizes a land-based engine), this section allows you to 
introduce new marine engines into U.S. commerce if they are already 
certified to the requirements that apply to compression-ignition engines 
under 40 CFR parts 85 and 86 or 40 CFR part 89, 92, 1033, or 1039 for 
the appropriate model year. If you comply with all the provisions of 
this section, we consider the certificate issued under 40 CFR part 86, 
89, 92, 1033, or 1039 for each engine to also be a valid certificate of 
conformity under this part 1042 for its model year, without a separate 
application for certification under the requirements of this part 1042. 
This section does not apply for Category 3 engines.
    (b) Vessel-manufacturer provisions. If you are not an engine 
manufacturer, you may install an engine certified for the appropriate 
model year under 40 CFR part 86, 89, 92, 1033, or 1039 in a marine 
vessel as long as you do not make any of the changes described in 
paragraph (d)(3) of this section and you meet the requirements of 
paragraph (e) of this section. If you modify the non-marine engine in 
any of the ways described in paragraph (d)(3) of this section, we will 
consider you a manufacturer of a new marine engine. Such engine 
modifications prevent you from using the provisions of this section.
    (c) Liability. Engines for which you meet the requirements of this 
section

[[Page 213]]

are exempt from all the requirements and prohibitions of this part, 
except for those specified in this section. Engines exempted under this 
section must meet all the applicable requirements from 40 CFR parts 85 
and 86 or 40 CFR part 89, 92, 1033, or 1039. This paragraph (c) applies 
to engine manufacturers, vessel manufacturers that use such an engine, 
and all other persons as if the engine were used in its originally 
intended application. The prohibited acts of 40 CFR 1068.101(a)(1) apply 
to these new engines and vessels; however, we consider the certificate 
issued under 40 CFR part 86, 89, 92, 1033, or 1039 for each engine to 
also be a valid certificate of conformity under this part 1042 for its 
model year. If we make a determination that these engines do not conform 
to the regulations during their useful life, we may require you to 
recall them under 40 CFR part 85, 89, 92, or 1068.
    (d) Specific criteria and requirements. If you are an engine 
manufacturer and meet all the following criteria and requirements 
regarding your new marine engine, the engine is eligible for an 
exemption under this section:
    (1) You must produce it by marinizing an engine covered by a valid 
certificate of conformity from one of the following programs:
    (i) Heavy-duty highway engines (40 CFR part 86).
    (ii) Land-based compression-ignition nonroad engines (40 CFR part 89 
or 1039).
    (iii) Locomotives (40 CFR part 92 or 1033). To be eligible for 
dressing under this section, the engine must be from a locomotive 
certified to standards that are at least as stringent as either the 
standards applicable to new marine engines or freshly manufactured 
locomotives in the model year that the engine is being dressed.
    (2) The engine must have the label required under 40 CFR part 86, 
89, 92, 1033, or 1039.
    (3) You must not make any changes to the certified engine that could 
reasonably be expected to increase its emissions. For example, if you 
make any of the following changes to one of these engines, you do not 
qualify for the engine dressing exemption:
    (i) Change any fuel system parameters from the certified 
configuration, or change, remove, or fail to properly install any other 
component, element of design, or calibration specified in the engine 
manufacturer's application for certification. This includes 
aftertreatment devices and all related components.
    (ii) Replacing an original turbocharger, except that small-volume 
engine manufacturers may replace an original turbocharger on a 
recreational engine with one that matches the performance of the 
original turbocharger.
    (iii) Modify or design the marine engine cooling or aftercooling 
system so that temperatures or heat rejection rates are outside the 
original engine manufacturer's specified ranges.
    (4) You must show that fewer than 10 percent of the engine family's 
total sales in the United States are used in marine applications. This 
includes engines used in any application, without regard to which 
company manufactures the vessel or equipment. Show this as follows:
    (i) If you are the original manufacturer of the engine, base this 
showing on your sales information.
    (ii) In all other cases, you must confirm this based on your best 
estimate of the original manufacturer's sales information.
    (e) Labeling and documentation. If you are an engine manufacturer or 
vessel manufacturer using this exemption, you must do all of the 
following:
    (1) Make sure the original engine label will remain clearly visible 
after installation in the vessel.
    (2) Add a permanent supplemental label to the engine in a position 
where it will remain clearly visible after installation in the vessel. 
In your engine label, do the following:
    (i) Include the heading: ``Marine Engine Emission Control 
Information''.
    (ii) Include your full corporate name and trademark.
    (iii) State: ``This engine was marinized without affecting its 
emission controls.''.
    (iv) State the date you finished marinizing the engine (month and 
year).
    (3) Send the Designated Compliance Officer a signed letter by the 
end of each calendar year (or less often if we

[[Page 214]]

tell you) with all the following information:
    (i) Identify your full corporate name, address, and telephone 
number.
    (ii) List the engine models for which you expect to use this 
exemption in the coming year and describe your basis for meeting the 
sales restrictions of paragraph (d)(4) of this section.
    (iii) State: ``We prepare each listed engine model for marine 
application without making any changes that could increase its certified 
emission levels, as described in 40 CFR 1042.605.''.
    (f) Failure to comply. If your engines do not meet the criteria 
listed in paragraph (d) of this section, they will be subject to the 
standards, requirements, and prohibitions of this part 1042 and the 
certificate issued under 40 CFR part(s) 86, 89, 92, 1033, or 1039 will 
not be deemed to also be a certificate issued under this part 1042. 
Introducing these engines into U.S. commerce as marine engines without a 
valid exemption or certificate of conformity under this part violates 
the prohibitions in 40 CFR 1068.101(a)(1).
    (g) Data submission. (1) If you are both the original manufacturer 
and marinizer of an exempted engine, you must send us emission test data 
on the appropriate marine duty cycles. You can include the data in your 
application for certification or in the letter described in paragraph 
(e)(3) of this section.
    (2) If you are the original manufacturer of an exempted engine that 
is marinized by a post-manufacture marinizer, you may be required to 
send us emission test data on the appropriate marine duty cycles. If 
such data are requested you will be allowed a reasonable amount of time 
to collect the data.
    (h) Participation in averaging, banking and trading. Engines adapted 
for marine use under this section may not generate or use emission 
credits under this part 1042. These engines may generate credits under 
the ABT provisions in 40 CFR part(s) 86, 89, 92, 1033, or 1039, as 
applicable. These engines must use emission credits under 40 CFR part(s) 
86, 89, 92, 1033, or 1039 as applicable if they are certified to an FEL 
that exceeds an emission standard.
    (i) Operator requirements. The requirements specified for vessel 
manufacturers, owners, and operators in this subpart (including 
requirements in 40 CFR part 1068) apply to these engines whether they 
are certified under this part 1042 or another part as allowed by this 
section.

[73 37243, June 30, 2008, as amended at 75 FR 23005, Apr. 30, 2010]



Sec. 1042.610  Certifying auxiliary marine engines to land-based standards.

    This section applies to auxiliary marine engines that are identical 
to certified land-based engines. See Sec. 1042.605 for provisions that 
apply to propulsion marine engines or auxiliary marine engines that are 
modified for marine applications. This section does not apply for 
Category 3 engines.
    (a) General provisions. If you are an engine manufacturer, this 
section allows you to introduce new marine engines into U.S. commerce if 
they are already certified to the requirements that apply to 
compression-ignition engines under 40 CFR part 89 or 1039 for the 
appropriate model year. If you comply with all the provisions of this 
section, we consider the certificate issued under 40 CFR part 89 or 1039 
for each engine to also be a valid certificate of conformity under this 
part 1042 for its model year, without a separate application for 
certification under the requirements of this part 1042.
    (b) Vessel-manufacturer provisions. If you are not an engine 
manufacturer, you may install an engine certified for land-based 
applications in a marine vessel as long as you meet all the qualifying 
criteria and requirements specified in paragraphs (d) and (e) of this 
section. If you modify the non-marine engine, we will consider you a 
manufacturer of a new marine engine. Such engine modifications prevent 
you from using the provisions of this section.
    (c) Liability. Engines for which you meet the requirements of this 
section are exempt from all the requirements and prohibitions of this 
part, except for those specified in this section. Engines exempted under 
this section must meet all the applicable requirements from 40 CFR part 
89 or 1039. This paragraph (c) applies to engine manufacturers, vessel

[[Page 215]]

manufacturers that use such an engine, and all other persons as if the 
engine were used in its originally intended application. The prohibited 
acts of 40 CFR 1068.101(a)(1) apply to these new engines and vessels; 
however, we consider the certificate issued under 40 CFR part 89 or 1039 
for each engine to also be a valid certificate of conformity under this 
part 1042 for its model year. If we make a determination that these 
engines do not conform to the regulations during their useful life, we 
may require you to recall them under 40 CFR part 89 or 1068.
    (d) Qualifying criteria. If you are an engine manufacturer and meet 
all the following criteria and requirements regarding your new marine 
engine, the engine is eligible for an exemption under this section:
    (1) The marine engine must be identical in all material respects to 
a land-based engine covered by a valid certificate of conformity for the 
appropriate model year showing that it meets emission standards for 
engines of that power rating under 40 CFR part 89 or 1039.
    (2) The engines may not be used as propulsion marine engines.
    (3) You must show that the number of auxiliary marine engines from 
the engine family must be smaller than the number of land-based engines 
from the engine family sold in the United States, as follows:
    (i) If you are the original manufacturer of the engine, base this 
showing on your sales information.
    (ii) In all other cases, you must get the original manufacturer of 
the engine to confirm this based on its sales information.
    (e) Specific requirements. If you are an engine manufacturer or 
vessel manufacturer using this exemption, you must do all of the 
following:
    (1) Make sure the original engine label will remain clearly visible 
after installation in the vessel. This label or a supplemental label 
must identify that the original certification is valid for auxiliary 
marine applications.
    (2) Send a signed letter to the Designated Compliance Officer by the 
end of each calendar year (or less often if we tell you) with all the 
following information:
    (i) Identify your full corporate name, address, and telephone 
number.
    (ii) List the engine models you expect to produce under this 
exemption in the coming year and describe your basis for meeting the 
sales restrictions of paragraph (d)(3) of this section.
    (iii) State: ``We produce each listed engine model for marine 
application without making any changes that could increase its certified 
emission levels, as described in 40 CFR 1042.610.''.
    (3) If you are the certificate holder, you must describe in your 
application for certification how you plan to produce engines for both 
land-based and auxiliary marine applications, including projected sales 
of auxiliary marine engines to the extent this can be determined. If the 
projected marine sales are substantial, we may ask for the year-end 
report of production volumes to include actual auxiliary marine engine 
sales.
    (f) Failure to comply. If your engines do not meet the criteria 
listed in paragraph (d) of this section, they will be subject to the 
standards, requirements, and prohibitions of this part 1042 and the 
certificate issued under 40 CFR part 89 or 1039 will not be deemed to 
also be a certificate issued under this part 1042. Introducing these 
engines into U.S. commerce as marine engines without a valid exemption 
or certificate of conformity under this part 1042 violates the 
prohibitions in 40 CFR 1068.101(a)(1).
    (g) Participation in averaging, banking and trading. Engines using 
this exemption may not generate or use emission credits under this part 
1042. These engines may generate credits under the ABT provisions in 40 
CFR part 89 or 1039, as applicable. These engines must use emission 
credits under 40 CFR part 89 or 1039 as applicable if they are certified 
to an FEL that exceeds an emission standard.
    (h) Operator requirements. The requirements specified for vessel 
manufacturers, owners, and operators in this subpart (including 
requirements in 40 CFR part 1068) apply to these engines whether they 
are certified under this part 1042 or another part as allowed by this 
section.

[73 37243, June 30, 2008, as amended at 75 FR 23006, Apr. 30, 2010]

[[Page 216]]



Sec. 1042.615  Replacement engine exemption.

    For Category 1 and Category 2 replacement engines, apply the 
provisions of 40 CFR 1068.240 as described in this section. In unusual 
circumstances, you may ask us to allow you to apply these provisions for 
a new Category 3 engine.
    (a) This paragraph (a) applies instead of the provisions of 40 CFR 
1068.240(b)(3). The prohibitions in 40 CFR 1068.101(a)(1) do not apply 
to a new replacement engine if all the following conditions are met:
    (1) You use good engineering judgment to determine that no engine 
certified to the current requirements of this part is produced by any 
manufacturer with the appropriate physical or performance 
characteristics to repower the vessel.
    (2) You make a record of your determination for each replacement 
engine with the following information and keep these records for eight 
years:
    (i) If you determine that no engine certified to the current 
requirements of this part is available with the appropriate performance 
characteristics, explain why certified engines produced by you and other 
manufacturers cannot be used as a replacement because they are not 
similar to the engine being replaced in terms of power or speed.
    (ii) You may determine that all engines certified to the current 
requirements of this part that have appropriate performance 
characteristics are not available because they do not have the 
appropriate physical characteristics. If this is the case, explain why 
these certified engines produced by you and other manufacturers cannot 
be used as a replacement because their weight or dimensions are 
substantially different than those of the engine being replaced, or 
because they will not fit within the vessel's engine compartment or 
engine room.
    (iii) In evaluating appropriate physical or performance 
characteristics, you may account for compatibility with vessel 
components you would not otherwise replace when installing a new engine, 
including transmissions or reduction gears, drive shafts or propeller 
shafts, propellers, cooling systems, operator controls, or electrical 
systems for generators or indirect-drive configurations. If you make 
your determination on this basis, you must identify the vessel 
components that are incompatible with engines certified to current 
standards and explain how they are incompatible and why it would be 
unreasonable to replace them.
    (iv) In evaluating appropriate physical or performance 
characteristics, you may account for compatibility in a set of two or 
more propulsion engines on a vessel where only one of the engines needs 
replacement, but only if each engine not needing replacement has 
operated for less than 75 percent of its applicable useful life in hours 
or years (see Sec. 1042.101). If any engine not otherwise needing 
replacement exceeds this 75 percent threshold, your determination must 
consider replacement of all the propulsion engines.
    (v) In addition to the determination specified in paragraph (a)(1) 
of this section, you must make a separate determination for your own 
product line addressing every tier of emission standards that is more 
stringent than the emission standards for the engine being replaced. For 
example, if the engine being replaced was built before the Tier 1 
standards started to apply and engines of that size are currently 
subject to Tier 3 standards, you must consider whether any Tier 1 or 
Tier 2 engines that you produce have the appropriate physical and 
performance characteristics for replacing the old engine; if you can 
produce a Tier 2 engine with the appropriate physical and performance 
characteristics, you must use it as the replacement engine.
    (3) You must notify us within 30 days after you ship each 
replacement engine under this section. Your notification must include 
all the following things and be signed by an authorized representative 
of your company:
    (i) A copy of your records describing how you made the determination 
described in paragraph (a)(2) of this section for this particular 
engine.
    (ii) The total number of replacement engines you have shipped in the 
applicable calendar year, from all your marine engine models.
    (iii) The following statement:


[[Page 217]]


    I certify that the statements and information in the enclosed 
document are true, accurate, and complete to the best of my knowledge. I 
am aware that there are significant civil and criminal penalties for 
submitting false statements and information, or omitting required 
statements and information.

    (4) The replacement engine must conform to the applicable 
requirements of 40 CFR part 1043. Note that 40 CFR 1043.10 specifies 
allowances for vessels that operate only domestically.
    (b) Modifying a vessel to significantly increase its value within 
six months after installing a replacement engine produced under this 
section is a violation of 40 CFR 1068.101(a)(1).
    (c) We may void an exemption for an engine if we determine that any 
of the conditions described in paragraph (a) of this section are not 
met.
    (d) We may reduce the reporting and recordkeeping requirements in 
this section.

[73 37243, June 30, 2008, as amended at 73 FR 59194, Oct. 8, 2008; 75 FR 
23006, Apr. 30, 2010]



Sec. 1042.620  Engines used solely for competition.

    The provisions of this section apply for new Category 1 engines and 
vessels built on or after January 1, 2009.
    (a) We may grant you an exemption from the standards and 
requirements of this part for a new engine on the grounds that it is to 
be used solely for competition. The requirements of this part, other 
than those in this section, do not apply to engines that we exempt for 
use solely for competition.
    (b) We will exempt engines that we determine will be used solely for 
competition. The basis of our determination is described in paragraphs 
(c) and (d) of this section. Exemptions granted under this section are 
good for only one model year and you must request renewal for each 
subsequent model year. We will not approve your renewal request if we 
determine the engine will not be used solely for competition.
    (c) Engines meeting all the following criteria are considered to be 
used solely for competition:
    (1) Neither the engine nor any vessels containing the engine may be 
displayed for sale in any public dealership or otherwise offered for 
sale to the general public. Note that this does not preclude display of 
these engines as long as they are not available for sale to the general 
public.
    (2) Sale of the vessel in which the engine is installed must be 
limited to professional racing teams, professional racers, or other 
qualified racers. For replacement engines, the sale of the engine itself 
must be limited to professional racing teams, professional racers, other 
qualified racers, or to the original vessel manufacturer.
    (3) The engine and the vessel in which it is installed must have 
performance characteristics that are substantially superior to 
noncompetitive models.
    (4) The engines are intended for use only as specified in paragraph 
(e) of this section.
    (d) You may ask us to approve an exemption for engines not meeting 
the criteria listed in paragraph (c) of this section as long as you have 
clear and convincing evidence that the engines will be used solely for 
competition.
    (e) Engines are considered to be used solely for competition only if 
their use is limited to competition events sanctioned by the U.S. Coast 
Guard or another public organization with authorizing permits for 
participating competitors. Operation of such engines may include only 
racing events, trials to qualify for racing events, and practice 
associated with racing events. Authorized attempts to set speed records 
are also considered racing events. Engines will not be considered to be 
used solely for competition if they are ever used for any recreational 
or other noncompetitive purpose. Use of exempt engines in any 
recreational events, such as poker runs and lobsterboat races, is a 
violation of 40 CFR 1068.101(b)(4).
    (f) You must permanently label engines exempted under this section 
to clearly indicate that they are to be used only for competition. 
Failure to properly label an engine will void the exemption for that 
engine.
    (g) If we request it, you must provide us any information we need to 
determine whether the engines are used solely for competition. This 
would include documentation regarding the number of engines and the 
ultimate purchaser of each engine as well as any

[[Page 218]]

documentation showing a vessel manufacturer's request for an exempted 
engine. Keep these records for five years.

[75 FR 23006, Apr. 30, 2010]



Sec. 1042.625  Special provisions for engines used in emergency applications.

    This section describes an exemption that is available for certain 
Category 1 and Category 2 engines. This exemption is not available for 
Category 3 engines.
    (a) Except as specified in paragraph (d) of this section, the 
prohibitions in Sec. 1068.101(a)(1) do not apply to a new engine that 
is subject to Tier 4 standards if the following conditions are met:
    (1) The engine is intended for installation in one of the following 
vessels or applications:
    (i) A lifeboat approved by the U.S. Coast Guard under approval 
series 160.135 (see for example 46 CFR 199.201(a)(1)), as long as such a 
vessel is not also used as a launch or tender.
    (ii) A rescue boat approved by the U.S. Coast Guard under approval 
series 160.156 (see for example 46 CFR 199.202(a)).
    (iii) Generator sets or other auxiliary equipment that qualify as 
final emergency power sources under 46 CFR part 112.
    (2) The engine meets the Tier 3 emission standards specified in 
Sec. 1042.101 as specified in 40 CFR 1068.265.
    (3) The engine is used only for its intended purpose, as specified 
on the emission control information label.
    (b) Except as specified in paragraph (d) of this section, the 
prohibitions in Sec. 1068.101(a)(1) do not apply to a new engine that 
is subject to Tier 3 standards according to the following provisions:
    (1) The engine must be intended for installation in a lifeboat or a 
rescue boat as specified in paragraph (a)(1)(i) or (ii) of this section.
    (2) This exemption is available from the initial effective date for 
the Tier 3 standards until the engine model (or one of comparable size, 
weight, and performance) has been certified as complying with the Tier 3 
standards and Coast Guard requirements.
    (3) The engine must meet the Tier 2 emission standards specified in 
Appendix I of this part as specified in 40 CFR 1068.265.
    (c) If you introduce an engine into U.S. commerce under this 
section, you must meet the labeling requirements in Sec. 1042.135, but 
add one of the following statements instead of the compliance statement 
in Sec. 1042.135(c)(10):
    (1) For lifeboats and rescue boats, add the following statement:

    THIS ENGINE DOES NOT COMPLY WITH CURRENT U.S. EPA EMISSION STANDARDS 
UNDER 40 CFR 1042.625 AND IS FOR USE SOLELY IN LIFEBOATS OR RESCUE BOATS 
(COAST GUARD APPROVAL SERIES 160.135 OR 160.156). INSTALLATION OR USE OF 
THIS ENGINE IN ANY OTHER APPLICATION MAY BE A VIOLATION OF FEDERAL LAW 
SUBJECT TO CIVIL PENALTY.

    (2) For engines serving as final emergency power sources, add the 
following statement:

    THIS ENGINE DOES NOT COMPLY WITH CURRENT U.S. EPA EMISSION STANDARDS 
UNDER 40 CFR 1042.625 AND IS FOR USE SOLELY IN EMERGENCY EQUIPMENT 
REGULATED BY 46 CFR 112. INSTALLATION OR USE OF THIS ENGINE IN ANY OTHER 
APPLICATION MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.

    (d) Introducing into commerce a vessel containing an engine exempted 
under this section violates the prohibitions in 40 CFR 1068.101(a)(1) 
where the vessel is not covered by paragraph (a) or (b) of this section, 
unless it is exempt under a different provision. Similarly, using such 
an engine or vessel as something other than a lifeboat, rescue boat, or 
emergency engine as specified in paragraph (a)(1) of this section 
violates the prohibitions in 40 CFR 1068.101(a)(1), unless it is exempt 
under a different provision.

[73 37243, June 30, 2008, as amended at 75 FR 23006, Apr. 30, 2010]



Sec. 1042.630  Personal-use exemption.

    This section applies to individuals who manufacture vessels for 
personal use with used Category 1 engines. If you and your vessel meet 
all the conditions of this section, the vessel and its engine are 
considered to be exempt from the standards and requirements of this part 
that apply to new engines and new vessels. The prohibitions in

[[Page 219]]

Sec. 1068.101(a)(1) do not apply to engines exempted under this 
section. For example, you may install an engine that was not certified 
as a marine engine.
    (a) The vessel may not be manufactured from a previously certified 
vessel, nor may it be manufactured from a partially complete vessel that 
is equivalent to a certified vessel. The vessel must be manufactured 
primarily from unassembled components, but may incorporate some 
preassembled components. For example, fully preassembled steering 
assemblies may be used. You may also power the vessel with an engine 
that was previously used in a highway or land-based nonroad application.
    (b) The vessel may not be sold within five years after the date of 
final assembly.
    (c) No individual may manufacture more than one vessel in any ten-
year period under this exemption.
    (d) You may not use the vessel in any revenue-generating service or 
for any other commercial purpose, except that you may use a vessel 
exempt under this section for commercial fishing that you personally do.
    (e) This exemption may not be used to circumvent the requirements of 
this part or the requirements of the Clean Air Act. For example, this 
exemption would not cover a case in which a person sells an almost 
completely assembled vessel to another person, who would then complete 
the assembly. This would be considered equivalent to the sale of the 
complete new vessel. This section also does not allow engine 
manufacturers to produce new engines that are exempt from emission 
standards and it does not provide an exemption from the prohibition 
against tampering with certified engines.
    (f) The vessel must be a vessel that is not classed or subject to 
Coast Guard inspections or surveys.

[73 37243, June 30, 2008, as amended at 75 FR 23006, Apr. 30, 2010]



Sec. 1042.635  National security exemption.

    The standards and requirements of this part and prohibitions in 
Sec. 1068.101(a)(1) do not apply to engines exempted under this 
section.
    (a) An engine is exempt without a request if it will be used or 
owned by an agency of the Federal government responsible for national 
defense, where the vessel in which it is installed has armor, 
permanently attached weaponry, specialized electronic warfare systems, 
unique stealth performance requirements, and/or unique combat 
maneuverability requirements. This applies to both remanufactured and 
freshly manufactured marine engines. Gas turbine engines are also exempt 
without a request if they will be owned by an agency of the Federal 
government responsible for national defense.
    (b) Manufacturers may request a national security exemption for 
engines not meeting the conditions of paragraph (a) of this section, as 
long as the request is endorsed by an agency of the federal government 
responsible for national defense. Agencies of the federal government 
responsible for national defense may request exemptions for 
remanufactured engines. In your request, explain why you need the 
exemption.
    (c) [Reserved]
    (d) Add a legible label, written in English, to all engines exempted 
under this section. The label must be permanently secured to a readily 
visible part of the engine needed for normal operation and not normally 
requiring replacement, such as the engine block. This label must include 
at least the following items:
    (1) The label heading ``EMISSION CONTROL INFORMATION''.
    (2) Your corporate name and trademark.
    (3) Engine displacement, family identification, and model year of 
the engine (as applicable), or whom to contact for further information.
    (4) The statement ``THIS ENGINE HAS AN EXEMPTION FOR NATIONAL 
SECURITY UNDER 40 CFR 1042.635.''.

[73 37243, June 30, 2008, as amended at 74 FR 8426, Feb. 24, 2009; 75 FR 
23006, Apr. 30, 2010]



Sec. 1042.640  Special provisions for branded engines.

    The following provisions apply if you identify the name and 
trademark of another company instead of your own on your emission 
control information label, as provided by Sec. 1042.135(c)(2):

[[Page 220]]

    (a) You must have a contractual agreement with the other company 
that obligates that company to take the following steps:
    (1) Meet the emission warranty requirements that apply under Sec. 
1042.120. This may involve a separate agreement involving reimbursement 
of warranty-related expenses.
    (2) Report all warranty-related information to the certificate 
holder.
    (b) In your application for certification, identify the company 
whose trademark you will use.
    (c) You remain responsible for meeting all the requirements of this 
chapter, including warranty and defect-reporting provisions.



Sec. 1042.650  Exemptions for migratory vessels and auxiliary engines on Category 3 vessels.

    The provisions of this section apply for Category 1 and Category 2 
engines, including auxiliary engines installed on vessels with Category 
3 propulsion engines. These provisions do not apply for any Category 3 
engines. All engines exempted under this section must comply with the 
applicable requirements of 40 CFR part 1043.
    (a) Temporary exemption. A vessel owner may ask us for a temporary 
exemption from the tampering prohibition in 40 CFR 1068.101(b)(1) for a 
vessel if it will operate only in areas outside the United States where 
ULSD is not available. In your request, describe where the vessel will 
operate, how long it will operate there, why ULSD will be unavailable, 
and how you will modify the engine, including its emission controls. If 
we approve your request, you may modify the engine, but only as needed 
to disable or remove the emission controls needed for meeting the Tier 4 
standards. You must return the engine to its original certified 
configuration before the vessel returns to the United States to avoid 
violating the tampering prohibition in 40 CFR 1068.101(b)(1). We may set 
additional conditions to prevent circumvention of the provisions of this 
part.
    (b) SOLAS exemption. We may approve a permanent exemption from the 
prohibitions in 40 CFR 1068.101(a)(1) for an engine that is subject to 
Tier 4 standards as described in this paragraph (b).
    (1) Vessel owners may ask for a permanent exemption from the Tier 4 
standards for an engine that will be installed on vessels that will 
operate for extended periods outside the United States, provided they 
demonstrate all of the following are true:
    (i) Prior to introduction into service, the vessel will comply with 
applicable certification requirements for international safety pursuant 
to the U.S. Coast Guard and the International Convention for the 
Protection of Life at Sea (SOLAS). The vessel owner must maintain 
compliance with these requirements for the life of the exempted engine.
    (ii) The vessel will be used in areas outside of the United States 
where ULSD will not be available.
    (iii) The mix of vessels with engines certified to Tier 3 or earlier 
standards in the owner's current fleet and the owner's current business 
operation of those vessels makes the exemption necessary. Note that 
because of the large fraction of pre-Tier 4 engines in the fleet prior 
to 2021, a request for a Tier 4 exemption prior to that year must 
clearly demonstrate that unusual circumstances apply.
    (2) An engine exempted under this paragraph (b) must meet the Tier 3 
emission standards described in Sec. 1402.101, subject to the 
procedural requirements of 40 CFR 1068.265.
    (3) If you introduce an engine into U.S. commerce under this 
section, you must meet the labeling requirements in Sec. 1042.135, but 
add the following statement instead of the compliance statement in Sec. 
1042.135(c)(10):

    THIS ENGINE DOES NOT COMPLY WITH CURRENT U.S. EPA EMISSION STANDARDS 
UNDER 40 CFR 1042.650 AND IS FOR USE SOLELY IN SOLAS VESSELS. 
INSTALLATION OR USE OF THIS ENGINE IN ANY OTHER APPLICATION MAY BE A 
VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.

    (4) Operating a vessel containing an engine exempted under this 
paragraph (b) violates the prohibitions in 40 CFR 1068.101(a)(1) if the 
vessel in not in full compliance with applicable requirements for 
international safety specified in paragraph (b)(1)(i) of this section.

[[Page 221]]

    (c) Vessels less than 500 gross tons. In unusual circumstances for 
vessels less than 500 gross tons, we may approve a vessel owner's 
request for a permanent exemption from the prohibitions in 40 CFR 
1068.101(a)(1) for an engine that is subject to Tier 4 standards that 
will operate for extended periods outside the United States without it 
being in compliance with applicable certification requirements for 
international safety. We may set appropriate additional conditions on 
such exemptions, and may void the exemption if those conditions are not 
met.
    (d) Auxiliary engines on Category 3 vessels. As specified in this 
paragraph (d), auxiliary engines on vessels with Category 3 propulsion 
engines are exempt from the standards of this part.
    (1) To be eligible for this exemption, the engine must meet all of 
the following criteria.
    (i) The engine must conform fully to the applicable NOX 
standards of Annex VI and meet all other applicable requirements of 40 
CFR part 1043. Engines installed on vessels constructed on or after 
January 1, 2016 must conform fully to the Annex VI Tier III 
NOX standards under 40 CFR part 1043 and meet all other 
applicable requirements in 40 CFR part 1043. Engines that would 
otherwise be subject to the Tier 4 standards of this part must also 
conform fully to the Annex VI Tier III NOX standards under 40 
CFR part 1043.
    (ii) The engine may not be used for propulsion (except for emergency 
engines).
    (iii) The engine may be equipped with on-off NOX 
controls, provided it conforms to the requirements of Sec. 1042.115(g).
    (2) You must notify the Designated Compliance Officer of your intent 
to use this exemption when applying for the EIAPP certificate for the 
engine under 40 CFR part 1043.
    (3) The remanufactured engine requirements of subpart I of this part 
do not apply.
    (4) If you introduce an engine into U.S. commerce under this 
paragraph (d), you must meet the labeling requirements in Sec. 
1042.135, but add the following statement instead of the compliance 
statement in Sec. 1042.135(c)(10):
    THIS ENGINE DOES NOT COMPLY WITH CURRENT U.S. EPA EMISSION STANDARDS 
UNDER 40 CFR 1042.650 AND IS FOR USE SOLELY IN VESSELS WITH CATEGORY 3 
PROPULSION ENGINES. INSTALLATION OR USE OF THIS ENGINE IN ANY OTHER 
APPLICATION MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.

[73 37243, June 30, 2008, as amended at 75 FR 23007, Apr. 30, 2010]



Sec. 1042.655  Special certification provisions for--Category 3 engines with aftertreatment.

    This section describes an optional approach for demonstrating for 
certification that catalyst-equipped engines (or engines equipped with 
other aftertreatment devices) comply with applicable emission standards. 
You must use good engineering judgment for all aspects of this 
allowance.
    (a) Eligibility. You may use the provisions of this section without 
our prior approval to demonstrate that aftertreatment-equipped Category 
3 engines meet the Tier 3 standards. In unusual circumstances, we may 
also allow you to use this approach to demonstrate that aftertreatment-
equipped Category 2 engines meet the Tier 4 standards. We will generally 
approve this for Category 2 engines only if the engines are too large to 
be practically tested in a laboratory with a fully assembled 
aftertreatment system. If we approve this approach for a Category 2 
engine, interpret references to Tier 3 in this section to mean Tier 4, 
and interpret references to Tier 2 in this section to mean Tier 3.
    (b) Required testing. The emission-data engine must be tested as 
specified in Subpart F to verify that the engine-out emissions comply 
with the Tier 2 standards. The catalyst material or other aftertreatment 
device must be tested under conditions that accurately represent actual 
engine conditions for the test points. This catalyst or aftertreatment 
testing may be performed on a benchscale.
    (c) Engineering analysis. Include with your application a detailed 
engineering analysis describing how the test data collected for the 
engine and aftertreatment demonstrate that all

[[Page 222]]

engines in the family will meet all applicable emission standards. We 
may require that you submit this analysis separately from your 
application, or that you obtain preliminary approval under Sec. 
1042.210.
    (d) Verification. You must verify your design by testing a complete 
production engine with installed aftertreatment in the final assembled 
configuration. Unless we specify otherwise, do this by complying with 
production-line testing requirements of subpart D of this part.
    (e) Other requirements. All other requirements of this part, 
including the non-testing requirements for certification, apply for 
these engines. Nothing in this section affects requirements in other 
regulatory parts, such as Coast Guard safety requirements.

[75 FR 23007, Apr. 30, 2010]



Sec. 1042.660  Requirements for vessel manufacturers, owners, and operators.

    (a) For vessels equipped with emission controls requiring the use of 
specific fuels, lubricants, or other fluids, owners and operators must 
comply with the manufacturer/remanufacturer's specifications for such 
fluids when operating the vessels. Failure to comply with the 
requirements of this paragraph is a violation of 40 CFR 1068.101(b)(1). 
For marine vessels that are excluded from the requirements of 40 CFR 
part 1043 because they operate only domestically, it is also a violation 
of 40 CFR 1068.101(b)(1) to operate the vessel using residual fuel on or 
after January 1, 2015. Note that 40 CFR part 80 also includes provisions 
that restrict the use of certain fuels by certain marine engines.
    (b) For vessels equipped with SCR systems requiring the use of urea 
or other reductants, owners and operators must report to us within 30 
days any operation of such vessels without the appropriate reductant. 
Failure to comply with the requirements of this paragraph is a violation 
of 40 CFR 1068.101(a)(2). Note that such operation is a violation of 40 
CFR 1068.101(b)(1).
    (c) The provisions of this paragraph (c) apply for marine vessels 
containing Category 3 engines.
    (1) The requirements of this paragraph (c)(1) apply only for 
Category 3 engines. All maintenance, repair, adjustment, and alteration 
of Category 3 engines subject to the provisions of this part performed 
by any owner, operator or other maintenance provider must be perform 
using good engineering judgment, in such a manner that the engine 
continues (after the maintenance, repair, adjustment or alteration) to 
meet the emission standards it was certified as meeting prior to the 
need for service. This includes but is not limited to complying with the 
maintenance instructions described in Sec. 1042.125. Adjustments are 
limited to the range specified by the engine manufacturer in the 
approved application for certification. Note that where a repair (or 
other maintenance) cannot be completed while at sea, it is not a 
violation to continue operating the engine to reach your destination.
    (2) It is a violation of 40 CFR 1068.101(b)(1) to operate the vessel 
with the engine adjusted outside of the specified adjustable range. Each 
two-hour period of such operation constitutes a separate offense. A 
violation lasting less than two hours constitutes a single offense.
    (3) The owner and operator of the engine must maintain on board the 
vessel records of all maintenance, repair, and adjustment that could 
reasonably affect the emission performance of any engine subject to the 
provision of this part. Owners and operators must also maintain, on 
board the vessel, records regarding certification, parameter adjustment, 
and fuels used. For engines that are automatically adjusted 
electronically, all adjustments must be logged automatically. Owners and 
operators must make these records available to EPA upon request. These 
records must include the following:
    (i) The Technical File, Record Book of Engine Parameters, and bunker 
delivery notes as specified in 40 CFR 1043.70. The Technical File must 
be transferred to subsequent purchasers in the event of a sale of the 
engine or vessel. (ii) Specific descriptions of engine maintenance, 
repair, adjustment, and alteration (including rebuilding). The 
descriptions must include at least the

[[Page 223]]

date, time, and nature of the maintenance, repair, adjustment, or 
alteration and the position of the vessel when the maintenance, repair, 
adjustment, or alteration was made.
    (iii) Emission-related maintenance instructions provided by the 
manufacturer. These instructions must be transferred to subsequent 
purchasers in the event of a sale of the engine or vessel.
    (4) Owners and operators of engines equipped with on-off emission 
controls must comply with the requirements of this paragraph (c)(4) 
whenever a malfunction of the emission controls is indicated as 
specified in Sec. 1042.110(d). You must determine the cause of the 
malfunction and remedy it consistent with paragraph (c)(1) of this 
section. See paragraph (b) of this section if the malfunction is due to 
either a lack of reductant or inadequate reductant quality. If the 
malfunction occurs during the useful life, report the malfunction to the 
certificate holder for investigation and compliance with defect 
reporting requirements of 40 CFR 1068.501 (unless the malfunction is due 
to operation without adequate urea or other malmaintenance).
    (d) For each marine vessel containing a Category 3 engine, the owner 
must annually review the vessel's records and submit to EPA a signed 
statement certifying compliance during the preceding year with the 
requirements of this part that are applicable to owners and operators of 
such vessels. Alternately, if review of the vessel's records indicates 
that there has been one or more violations of the requirements of this 
part, the owner must submit to EPA a signed statement specifying the 
noncompliance, including the nature of the noncompliance, the time of 
the noncompliance, and any efforts made to remedy the noncompliance. The 
statement of compliance (or noncompliance) required by this paragraph 
must be signed by the executive with responsibility for marine 
activities of the owner. If the vessel is operated by a different 
business entity than the vessel owner, the reporting requirements of 
this paragraph (e) apply to both the owner and the operator. Compliance 
with these review and certification requirements by either the vessel 
owner or the vessel operator with respect to a compliance statement will 
be considered compliance with these requirements by both of these 
parties for that compliance statement. The executive(s) may authorize a 
captain or other primary operator to conduct this review and submit the 
certification, provided that the certification statement is accompanied 
by written authorization for that individual to submit such statements. 
The Administrator may waive the requirements of this paragraph when 
equivalent assurance of compliance is otherwise available.
    (e) Manufacturers, owners and operators must allow emission tests 
and inspections required by this part to be conducted and must provide 
reasonable assistance to perform such tests or inspections.

[75 FR 23007, Apr. 30, 2010]



Sec. 1042.670  Special provisions for gas turbine engines.

    The provisions of this section apply for gas turbine engines.
    (a) Implementation schedule. The requirements of this part do not 
apply for gas turbine engines below 600 kW before the 2014 model year. 
The requirements of this part do not apply for Tier 3 or earlier gas 
turbine engines at or above 600 kW. The provisions of 40 CFR part 1068 
also do not apply for gas turbine engines produced in these earlier 
model years.
    (b) Special test procedures. Manufacturers seeking certification of 
gas turbine engines must obtain preliminary approval of the test 
procedures to be used, consistent with Sec. 1042.210 and 40 CFR 
1065.10.
    (c) Remanufacturing. The requirements of subpart I of this part do 
not apply for gas turbine engines.
    (d) Equivalent displacement. Apply displacement-based provisions of 
this part by calculating an equivalent displacement from the maximum 
engine power. The equivalent per-cylinder displacement (in liters) 
equals the maximum engine power in kW multiplied by 0.00311, except that 
all gas turbines with maximum engine power above 9,300 kW are considered 
to have an equivalent per-cylinder displacement of 29.0 liters.

[[Page 224]]

    (e) Emission-related components. All components meeting the criteria 
of 40 CFR 1068.501(a)(1) are considered to be emission-related 
components with respect to maintenance, warranty, and defect reporting 
for gas turbine engines.
    (f) Engines used for national defense. See Sec. 1042.635 for 
provisions related to exempting gas turbine engines used for national 
defense.

[75 FR 23008, Apr. 30, 2010]



       Subpart H_Averaging, Banking, and Trading for Certification



Sec. 1042.701  General provisions.

    This subpart describes how you may use emission credits to 
demonstrate that Category 1 and Category 2 engines comply with emission 
standards under this part. The provisions of this subpart do not apply 
for Category 3 engines.
    (a) You may average, bank, and trade (ABT) emission credits for 
purposes of certification as described in this subpart to show 
compliance with the standards of this part. Participation in this 
program is voluntary.
    (b) The definitions of subpart J of this part apply to this subpart. 
The following definitions also apply:
    (1) Actual emission credits means emission credits you have 
generated that we have verified by reviewing your final report.
    (2) Applicable emission standard means an emission standard that is 
specified in subpart B of this part. Note that for other subparts, 
``applicable emission standard'' is defined to also include FELs.
    (3) Averaging set means a set of engines in which emission credits 
may be exchanged only with other engines in the same averaging set.
    (4) Broker means any entity that facilitates a trade of emission 
credits between a buyer and seller.
    (5) Buyer means the entity that receives emission credits as a 
result of a trade.
    (6) Reserved emission credits means emission credits you have 
generated that we have not yet verified by reviewing your final report.
    (7) Seller means the entity that provides emission credits during a 
trade.
    (8) Standard means the emission standard that applies under subpart 
B of this part for engines not participating in the ABT program of this 
subpart.
    (9) Trade means to exchange emission credits, either as a buyer or 
seller.
    (c) Emission credits may be exchanged only within an averaging set. 
Except as specified in paragraph (d) of this section, the following 
criteria define the applicable averaging sets:
    (1) Recreational engines.
    (2) Commercial Category 1 engines.
    (3) Category 2 engines.
    (d) Emission credits generated by commercial Category 1 engine 
families may be used for compliance by Category 2 engine families. Such 
credits must be discounted by 25 percent.
    (e) You may not use emission credits generated under this subpart to 
offset any emissions that exceed an FEL or standard. This applies for 
all testing, including certification testing, in-use testing, selective 
enforcement audits, and other production-line testing. However, if 
emissions from an engine exceed an FEL or standard (for example, during 
a selective enforcement audit), you may use emission credits to 
recertify the engine family with a higher FEL that applies only to 
future production.
    (f) Engine families that use emission credits for one or more 
pollutants may not generate positive emission credits for another 
pollutant.
    (g) Emission credits may be used in the model year they are 
generated or in future model years. Emission credits may not be used for 
past model years.
    (h) You may increase or decrease an FEL during the model year by 
amending your application for certification under Sec. 1042.225.
    (i) You may use NOX+HC credits to show compliance with a 
NOX emission standard or use NOX credits to show 
compliance with a NOX+HC emission standard.

[73 FR 37243, June 30, 2008, as amended at 75 FR 23008, Apr. 30, 2010]

[[Page 225]]



Sec. 1042.705  Generating and calculating emission credits.

    The provisions of this section apply separately for calculating 
emission credits for NOX, NOX+HC, or PM.
    (a) For each participating family, calculate positive or negative 
emission credits relative to the otherwise applicable emission standard. 
Calculate positive emission credits for a family that has an FEL below 
the standard. Calculate negative emission credits for a family that has 
an FEL above the standard. Sum your positive and negative credits for 
the model year before rounding. Round the sum of emission credits to the 
nearest kilogram (kg) using consistent units throughout the following 
equation:

Emission credits (kg) = (Std - FEL) x (Volume) x (Power) x (LF) x (UL) x 
    (10-\3\)

Where:

Std = The emission standard, in g/kW-hr.
FEL = The family emission limit for the engine family, in g/kW-hr.
Volume = The number of engines eligible to participate in the averaging, 
banking, and trading program within the given engine family during the 
model year, as described in paragraph (c) of this section.
Power = The average value of maximum engine power of all the engine 
configurations within an engine family, calculated on a production-
weighted basis, in kilowatts.
LF = Load factor. Use 0.69 for propulsion marine engines and 0.51 for 
auxiliary marine engines. We may specify a different load factor if we 
approve the use of special test procedures for an engine family under 40 
CFR 1065.10(c)(2), consistent with good engineering judgment.
UL = The useful life for the given engine family, in hours.

    (b) [Reserved]
    (c) In your application for certification, base your showing of 
compliance on projected production volumes for engines whose point of 
first retail sale is in the United States. As described in Sec. 
1042.730, compliance with the requirements of this subpart is determined 
at the end of the model year based on actual production volumes for 
engines whose point of first retail sale is in the United States. Do not 
include any of the following engines to calculate emission credits:
    (1) Engines permanently exempted under subpart G of this part or 
under 40 CFR part 1068.
    (2) Exported engines.
    (3) Engines not subject to the requirements of this part, such as 
those excluded under Sec. 1042.5.
    (4) [Reserved]
    (5) Any other engines, where we indicate elsewhere in this part 1042 
that they are not to be included in the calculations of this subpart.

[73 FR 37243, June 30, 2008, as amended at 75 FR 23008, Apr. 30, 2010]



Sec. 1042.710  Averaging emission credits.

    (a) Averaging is the exchange of emission credits among your engine 
families.
    (b) You may certify one or more engine families to an FEL above the 
emission standard, subject to the FEL caps and other provisions in 
subpart B of this part, if you show in your application for 
certification that your projected balance of all emission-credit 
transactions in that model year is greater than or equal to zero.
    (c) If you certify an engine family to an FEL that exceeds the 
otherwise applicable emission standard, you must obtain enough emission 
credits to offset the engine family's deficit by the due date for the 
final report required in Sec. 1042.730. The emission credits used to 
address the deficit may come from your other engine families that 
generate emission credits in the same model year, from emission credits 
you have banked, or from emission credits you obtain through trading.



Sec. 1042.715  Banking emission credits.

    (a) Banking is the retention of emission credits by the manufacturer 
generating the emission credits for use in future model years for 
averaging or trading.
    (b) You may designate any emission credits you plan to bank in the 
reports you submit under Sec. 1042.730 as reserved credits. During the 
model year and before the due date for the final report, you may 
designate your reserved emission credits for averaging or trading.
    (c) Reserved credits become actual emission credits when you submit 
your final report. However, we may revoke these emission credits if we 
are unable

[[Page 226]]

to verify them after reviewing your reports or auditing your records.

[75 FR 23009, Apr. 30, 2010]



Sec. 1042.720  Trading emission credits.

    (a) Trading is the exchange of emission credits between 
manufacturers. You may use traded emission credits for averaging, 
banking, or further trading transactions.
    (b) You may trade actual emission credits as described in this 
subpart. You may also trade reserved emission credits, but we may revoke 
these emission credits based on our review of your records or reports or 
those of the company with which you traded emission credits. You may 
trade banked credits within an averaging set to any certifying 
manufacturer.
    (c) If a negative emission credit balance results from a 
transaction, both the buyer and seller are liable, except in cases we 
deem to involve fraud. See Sec. 1042.255(e) for cases involving fraud. 
We may void the certificates of all engine families participating in a 
trade that results in a manufacturer having a negative balance of 
emission credits. See Sec. 1042.745.

[73 FR 37243, June 30, 2008, as amended at 75 FR 23009, Apr. 30, 2010]



Sec. 1042.725  Information required for the application for certification.

    (a) You must declare in your application for certification your 
intent to use the provisions of this subpart for each engine family that 
will be certified using the ABT program. You must also declare the FELs 
you select for the engine family for each pollutant for which you are 
using the ABT program. Your FELs must comply with the specifications of 
subpart B of this part, including the FEL caps. FELs must be expressed 
to the same number of decimal places as the emission standards.
    (b) Include the following in your application for certification:
    (1) A statement that, to the best of your belief, you will not have 
a negative balance of emission credits for any averaging set when all 
emission credits are calculated at the end of the year.
    (2) Detailed calculations of projected emission credits (positive or 
negative) based on projected production volumes. We may require you to 
include similar calculations from your other engine families to 
demonstrate that you will be able to avoid a negative credit balance for 
the model year. If you project negative emission credits for a family, 
state the source of positive emission credits you expect to use to 
offset the negative emission credits.

[73 FR 37243, June 30, 2008, as amended at 75 FR 23009, Apr. 30, 2010]



Sec. 1042.730  ABT reports.

    (a) If any of your engine families are certified using the ABT 
provisions of this subpart, you must send an end-of-year report within 
90 days after the end of the model year and a final report within 270 
days after the end of the model year. We may waive the requirement to 
send the end-of-year report, as long as you send the final report on 
time.
    (b) Your end-of-year and final reports must include the following 
information for each engine family participating in the ABT program:
    (1) Engine-family designation.
    (2) The emission standards that would otherwise apply to the engine 
family.
    (3) The FEL for each pollutant. If you change the FEL after the 
start of production, identify the date that you started using the new 
FEL and/or give the engine identification number for the first engine 
covered by the new FEL. In this case, identify each applicable FEL and 
calculate the positive or negative emission credits under each FEL.
    (4) The projected and actual U.S.-directed production volumes for 
the model year, as described in Sec. 1042.705(c). If you changed an FEL 
during the model year, identify the actual production volume associated 
with each FEL.
    (5) Maximum engine power for each engine configuration, and the 
average engine power weighted by U.S.-directed production volumes for 
the engine family.
    (6) Useful life.
    (7) Calculated positive or negative emission credits for the whole 
engine family. Identify any emission credits that you traded, as 
described in paragraph (d)(1) of this section.

[[Page 227]]

    (c) Your end-of-year and final reports must include the following 
additional information:
    (1) Show that your net balance of emission credits from all your 
participating engine families in each averaging set in the applicable 
model year is not negative.
    (2) State whether you will retain any emission credits for banking.
    (3) State that the report's contents are accurate.
    (d) If you trade emission credits, you must send us a report within 
90 days after the transaction, as follows:
    (1) Sellers must include the following information in their report:
    (i) The corporate names of the buyer and any brokers.
    (ii) A copy of any contracts related to the trade.
    (iii) The engine families that generated emission credits for the 
trade, including the number of emission credits from each family.
    (2) Buyers must include the following information in their report:
    (i) The corporate names of the seller and any brokers.
    (ii) A copy of any contracts related to the trade.
    (iii) How you intend to use the emission credits, including the 
number of emission credits you intend to apply to each engine family (if 
known).
    (e) Send your reports electronically to the Designated Compliance 
Officer using an approved information format. If you want to use a 
different format, send us a written request with justification for a 
waiver.
    (f) Correct errors in your end-of-year report or final report as 
follows:
    (1) You may correct any errors in your end-of-year report when you 
prepare the final report, as long as you send us the final report by the 
time it is due.
    (2) If you or we determine within 270 days after the end of the 
model year that errors mistakenly decreased your balance of emission 
credits, you may correct the errors and recalculate the balance of 
emission credits. You may not make these corrections for errors that are 
determined more than 270 days after the end of the model year. If you 
report a negative balance of emission credits, we may disallow 
corrections under this paragraph (f)(2).
    (3) If you or we determine anytime that errors mistakenly increased 
your balance of emission credits, you must correct the errors and 
recalculate the balance of emission credits.

[73 37243, June 30, 2008, as amended at 75 FR 23009, Apr. 30, 2010]



Sec. 1042.735  Recordkeeping.

    (a) You must organize and maintain your records as described in this 
section. We may review your records at any time.
    (b) Keep the records required by this section for at least eight 
years after the due date for the end-of-year report. You may not use 
emission credits for any engines if you do not keep all the records 
required under this section. You must therefore keep these records to 
continue to bank valid credits. Store these records in any format and on 
any media as long as you can promptly send us organized, written records 
in English if we ask for them. You must keep these records readily 
available. We may review them at any time.
    (c) Keep a copy of the reports we require in Sec. 1042.730.
    (d) Keep records of the engine identification number for each engine 
you produce that generates or uses emission credits under the ABT 
program. You may identify these numbers as a range. If you change the 
FEL after the start of production, identify the date you started using 
each FEL and the range of engine identification numbers associated with 
each FEL. You must also identify the purchaser and destination for each 
engine you produce to the extent this information is available.
    (e) We may require you to keep additional records or to send us 
relevant information not required by this section in accordance with the 
Clean Air Act.

[73 37243, June 30, 2008, as amended at 75 FR 23009, Apr. 30, 2010]



Sec. 1042.745  Noncompliance.

    (a) For each engine family participating in the ABT program, the 
certificate of conformity is conditional upon full compliance with the 
provisions of this subpart during and after the model

[[Page 228]]

year. You are responsible to establish to our satisfaction that you 
fully comply with applicable requirements. We may void the certificate 
of conformity for an engine family if you fail to comply with any 
provisions of this subpart.
    (b) You may certify your engine family to an FEL above an emission 
standard based on a projection that you will have enough emission 
credits to offset the deficit for the engine family. However, we may 
void the certificate of conformity if you cannot show in your final 
report that you have enough actual emission credits to offset a deficit 
for any pollutant in an engine family.
    (c) We may void the certificate of conformity for an engine family 
if you fail to keep records, send reports, or give us information we 
request.
    (d) You may ask for a hearing if we void your certificate under this 
section (see Sec. 1042.920).



     Subpart I_Special Provisions for Remanufactured Marine Engines



Sec. 1042.801  General provisions.

    This subpart describes how the provisions of this part 1042 apply 
for certain remanufactured marine engines.
    (a) The requirements of this subpart apply for remanufactured Tier 2 
and earlier commercial Category 1 and Category 2 marine engines at or 
above 600 kW, excluding those engines originally manufactured before 
1973. Note that the requirements of this subpart do not apply for 
engines below 600 kW, Category 3 engines, engines installed on 
recreational vessels, or Tier 3 and later engines.
    (b) Any person meeting the definition of ``remanufacturer'' in Sec. 
1042.901 may apply for a certificate of conformity for a remanufactured 
engine family.
    (c) The rebuilding requirements of 40 CFR 1068.120 do not apply to 
remanufacturing of engines using a certified remanufacturing system 
under this subpart. However, the requirements of 40 CFR 1068.120 do 
apply to all other remanufacturing of engines.
    (d) Unless specified otherwise, engines certified under this subpart 
are also subject to the other requirements of this part.
    (e) For remanufactured engines required to have a valid certificate 
of conformity, placing a new marine engine back into service following 
remanufacturing is a violation of 40 CFR 1068.101(a)(1), unless it has a 
valid certificate of conformity for its model year and the required 
label.
    (f) Remanufacturing systems that require a fuel change or use of a 
fuel additive may be certified under this part. However, they are not 
considered to be ``available'' with respect to triggering the 
requirement for an engine to be covered by a certificate of conformity 
under Sec. 1042.815. The following provisions apply:
    (1) Only fuels and additives registered under 40 CFR part 79 may be 
used under this paragraph (f).
    (2) You must demonstrate in your application that the fuel or 
additive will actually be used by operators, including a description of 
how the vessels and dispensing tanks will be labeled. We may require you 
to provide the labels to the operators.
    (3) You must also describe analytical methods that can be used by 
EPA or others to verify that fuel meets your specifications.
    (4) You must provide clear instructions to the operators specifying 
that they may only use the specified fuel/additive, label their vessels 
and fuel dispensing tanks, and keep records of their use of the fuel/
additive in order for their engine to be covered by your certificate. 
Use of the incorrect fuel (or fuel without the specified additive) or 
any other failure to comply with the requirements of this paragraph is a 
violation of 40 CFR 1068.101(b)(1).
    (g) Vessels equipped with emission controls as part of a state or 
local retrofit program prior to January 1, 2017 are exempt from the 
requirements of this subpart, as specified in this paragraph (g).
    (1) This exemption only applies for retrofit programs sponsored by a 
state government (or one of its political subdivisions) for the purpose 
of reducing emissions. The exemption does not apply where the sponsoring 
government specifies that inclusion in the retrofit program is not 
intended to provide an exemption from the requirements of this subpart.
    (2) The prohibitions against tampering and defeat devices in 40 CFR

[[Page 229]]

1068.101(b) and the rebuilding requirements in 40 CFR 1068.120 apply for 
the exempt engines in the same manner as if they were covered by a 
certificate.
    (3) Vessel owners must request an exemption prior to remanufacturing 
the engine. Your request must include documentation that your vessel has 
been retrofitted consistent with the specifications of paragraph (g)(1) 
of this section, and a signed statement declaring that to be true. 
Except