[Federal Register: October 5, 2001 (Volume 66, Number 194)]
[Proposed Rules]               
[Page 51247-51272]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05oc01-56]                         
 
[[pp. 51247-51272]] Control of Emissions From Nonroad Large Spark Ignition Engines 
and Recreational Engines (Marine and Land-Based)

[[Continued from page 51246]]

[[Page 51247]]

are comprised of second-by-second specifications for torque and speed. 
Both torque and speed are normalized in these cycles.
    (1) Torque is normalized to the maximum torque at the speed listed 
with it. Therefore, to denormalize the torque values in the cycle, use 
the maximum torque curve for the engine in question. The generation of 
the maximum torque curve is described in Sec. 1065.510.
    (2) To denormalize speed, use the following equation:

Actual rpm = (0.01)(%rpm)(Maximum test speed-warm idle speed) + warm 
idle speed.

    (3) Paragraph (d) of this section describes the method of 
calculating maximum test speed.
    (b) Example of the denormalization procedure. For an engine with 
maximum test speed of 3800 rpm and warm idle speed of 600 rpm, 
denormalize the following test point:

percent rpm = 43, percent torque = 82.

    (1) Calculate actual rpm. Use the following equation:

Actual rpm = (0.01)(43)(3800-600) + 600 = 1976.

    (2) Determine actual torque. Determine the maximum observed torque 
at 1976 rpm from the maximum torque curve. Then multiply this value 
(for example, 358 ft-lbs) by 0.82. This results in an actual torque of 
294 ft-lbs.
    (c) Cold-start enhancement devices. Proper operation of the 
engine's automatic cold-start enhancement device supersedes the zero-
percent speed specified in the test cycles.
    (d) Maximum test speed. Maximum test speed is used for all the 
emission testing we require. It occurs on the lug curve at the point 
farthest from the origin on a plot of power vs. speed. To find this 
speed, follow these steps:
    (1) Generate the lug curve. Before testing an engine for emissions, 
generate data points for maximum measured brake power with varying 
engine speed (see Sec. 1065.510). These data points form the lug curve.
    (2) Normalize the lug curve. To normalize the lug curve, do three 
things:
    (i) Identify the point (power and speed) on the lug curve where 
maximum power occurs.
    (ii) Normalize the power values of the lug curve--divide them by 
the maximum power and multiply the resulting values by 100.
    (iii) Normalize the engine speed values of the lug curve--divide 
them by the speed at which maximum power occurs and multiply the 
resulting values by 100.
    (3) Determine maximum test speed. Calculate the maximum test speed 
from the following speed-factor analysis:
    (i) For a given power-speed point, the speed factor is the 
normalized distance to the power-speed point from the zero-power, zero-
speed point. Compute the speed factor's value:
[GRAPHIC] [TIFF OMITTED] TP05OC01.010

    (ii) Determine the maximum value of speed factors for all the 
power-speed data points on the lug curve. Maximum test speed is the 
speed at which the speed factor's maximum value occurs. Note that this 
maximum test speed is the 100-percent speed point for normalized 
transient duty cycles.
    (4) Constant-speed engines. For constant-speed engines, maximum 
test speed is the same as the engine's maximum in-use operating speed.
    (e) Intermediate test speed. Determine intermediate test speed with 
the following provisions:
    (1) If peak torque speed is between 60 to 75 percent of maximum 
test speed, the intermediate speed point is at that same speed.
    (2) If peak torque speed is less than 60 percent of maximum test 
speed, the intermediate speed point is at 60 percent of maximum test 
speed.
    (3) If peak torque speed is greater than 75 percent of maximum test 
speed, the intermediate speed point is at 75 percent of maximum test 
speed.

Sec. 1065.520  Engine starting, restarting, and shutdown.

    Applicable test cycles may contain requirements to start or shut 
down the engine. This section specifies how to do that.
    (a) Engine starting. Start the engine according to the 
manufacturer's recommended starting procedure in the owner's manual, 
using either a production starter motor or the dynamometer. The speed 
at which the engine is cranked (motored) with the dynamometer should be 
equal to the typical in-use cranking speed (nominal speed 
10 percent) with a fully charged battery. The time the 
dynamometer takes to accelerate the engine to cranking speed should be 
equal (nominal 0.5 seconds) to the time required with a 
starter motor. Terminate motoring by the dynamometer within one second 
of starting the engine. The free-idle period of the cycle begins when 
you determine that the engine has started.
    (1) If the engine does not start after 15 seconds of cranking, 
cease cranking and determine the reason for the failure to start. Turn 
off the gas flow measuring device (or revolution counter) on the 
constant-volume sampler (and the hydrocarbon integrator when measuring 
hydrocarbons continuously) during this diagnostic period. Also, either 
turn off the CVS or disconnect the exhaust tube from the tailpipe 
during the diagnostic period. If failure to start is an operational 
error, reschedule the engine for testing (this may require soaking the 
engine if a cold-start is required for the test).
    (2) If longer cranking times are necessary, you may use them 
instead of the 15-second limit, as long as the owner's manual and the 
service repair manual describe the longer cranking times as normal.
    (3) If an engine malfunction causes a failure to start, you may 
take corrective action of less than 30 minutes duration and continue 
the test. Reactivate the sampling system at the same time cranking 
begins. When the engine starts, begin the timing sequence. If an engine 
malfunction causes a failure to start and the engine cannot be 
restarted, the test is void.
    (b) Engine stalling. Respond to engine stalling according the 
following provisions:
    (1) If the engine stalls during the warm-up period, the initial 
idle period of test, or the steady-state segment, you may restart the 
engine immediately using the appropriate starting procedure and 
continue the test.
    (2) If the engine stalls anywhere else during the test, the test is 
void.
    (c) Engine shutdown. Shut the engine down according to the 
manufacturer's specifications.

Sec. 1065.525  Engine dynamometer test run.

    Take the following steps for each test:
    (a) Prepare the engine, dynamometer, and sampling system. Change 
filters or other replaceable items and leak check as necessary.
    (b) If you are using bag samples, connect evacuated sample 
collection bags to the dilute exhaust and dilution air sample 
collection systems.
    (c) Attach the CVS to the engine exhaust system any time prior to 
starting the CVS.
    (d) Start the CVS (if not already started), the sample pumps, the 
engine cooling fan(s), and the data collection system. Preheat the heat 
exchanger of the constant-volume sampler (if used) and the heated 
components of any continuous sampling system(s) to their designated 
operating temperatures before the test begins.
    (e) Adjust the sample flow rates to the desired flow rates and set 
the CVS gas flow measuring devices to zero. CFV-

[[Page 51248]]

CVS sample flow rate is fixed by the venturi design.
    (f) Start the engine if engine starting is not part of the test 
cycle specified in the standard-setting part.
    (g) Run the test cycle specified in the standard-setting part and 
collect the test data.
    (h) As soon as practical after the test cycle is completed, analyze 
the bag samples.

Sec. 1065.530  Test cycle validation criteria.

    (a) Steady-state emission testing. Engine speeds and/or loads may 
not deviate from the set point more than 2 percent of point 
during the sampling period for a valid test.
    (b) Transient emission testing performed by EPA. Emission tests not 
meeting the specifications of this paragraph (b) are not considered to 
be in accordance with the test cycle requirements of the standard-
setting part, except where the cause of the failure to meet these 
specifications is determined to be related to the engine rather than 
the test equipment.
    (1) Shifting feedback signals. To minimize the biasing effect of 
the time lag between the feedback and reference cycle values, you may 
advance or delay the entire engine speed and torque feedback signal 
sequence with respect to the reference speed and torque sequence. If 
the feedback signals are shifted, you must shift both speed and torque 
the same amount in the same direction.
    (2) Brake kilowatt-hour calculation. Calculate the brake kilowatt-
hour for each pair of engine feedback speed and torque values recorded. 
Also calculate the reference brake kilowatt-hour for each pair of 
engine speed and torque reference values. Calculations must be done to 
five significant figures.
    (3) Regression line analysis. Perform regression analysis to 
calculate validation statistics according to the following:
    (i) Perform linear regressions of feedback value on reference value 
for speed, torque, and brake power on 1 Hz data after the feedback 
shift has occurred (see paragraph (b)(1) of this section). Use the 
method of least squares, with the best fit equation having the form:

y = mx + b

Where:

y = The feedback (actual) value of speed (rpm), torque (ft-lbs), or 
brake power.
m = Slope of the regression line.
x = The reference value (speed, torque, or brake power).
b = The y-intercept of the regression line.
    (ii) Calculate the standard error of estimate (SE) of y on x and 
the coefficient of determination (r2) for each regression 
line.
    (iii) For the test to be considered valid, the slope, intercept, 
standard error, and coefficient of determination must meet the criteria 
in Table 1 of Sec. 1065.530 and the integrated brake kilowatt-hour of 
the feedback cycle does must be within 5 percent of the integrated 
brake kilowatt-hour of the reference cycle. Individual points may be 
deleted from the regression analyses consistent with good engineering 
judgment. Table 1 follows:

                   Table 1 of Sec.  1065.530.--Statistical Criteria for Test Cycle Validation
----------------------------------------------------------------------------------------------------------------
                                                Speed                    Torque                   Power
----------------------------------------------------------------------------------------------------------------
1. Standard error of the estimate of   100 rpm................  15 percent of maximum    10 percent of maximum
 Y on X (SE).                                                    torque from power map.   power from power map.
----------------------------------------------------------------------------------------------------------------
2. Slope of the regression line (m)..  0.980 to 1.020.........  0.880 to 1.030.........  0.880 to 1.030.
----------------------------------------------------------------------------------------------------------------
3. Coefficient of determination (r2).  r20.970.....  r20.900.....  r20.900.
----------------------------------------------------------------------------------------------------------------
4. Y intercept of the regression line  |b|>40 rpm.............  |b|>5.0 percent of       |b|>3.0 percent of
 (b).                                                            maximum torque from      maximum torque from
                                                                 power map.               power map.
----------------------------------------------------------------------------------------------------------------

    (c) Transient testing performed by manufacturers. Emission tests 
meeting the specifications of paragraph (b) of this section are 
considered to be in accordance with the test cycle requirements of the 
standard-setting part. A manufacturer may choose to use a dynamometer 
not capable of meeting the specifications of paragraph (b) of this 
section.

Subpart G--Data Analysis and Calculations

Sec. 1065.601  Overview.

    This subpart describes how to use the responses on the anlayzers 
and other meters to calculate final gram per kilowatt-hour emission 
rates.

Sec. 1065.605  Required records.

    Retain the following information for each test:
    (a) Test number.
    (b) System or device tested (brief description).
    (c) Date and time of day for each part of the test schedule.
    (d) Test results.
    (e) Operator's name.
    (f) Engine: ID number, manufacturer, model year, emission 
standards, engine family, basic engine description, fuel system, engine 
code, and idle rpm, as applicable.
    (g) Dynamometer: Dynamometer identification, records to verify 
compliance with the duty cycle requirements of the test.
    (h) Gas analyzers: Analyzer bench identification, analyzer ranges, 
recordings of analyzer output during zero, span, and sample readings.
    (i) Recorder charts: Test number, date, identification, operator's 
name, and identification of the measurements recorded.
    (j) Test cell barometric pressure, ambient temperature, and 
humidity as required. (Some test systems may require continuous 
measurements, others may require a single measurement, or measurements 
before and after the test.)
    (k) Temperatures: Records to verify compliance with the ambient 
temperature requirements throughout the test procedure.
    (l) CFV-CVS: Total dilute exhaust volume (Vmix) for each phase of 
the exhaust test.
    (m) PDP-CVS: Test measurements for calculating the total dilute 
exhaust volume (Vmix), and the Vmix for each phase of the exhaust test.
    (n) The humidity of the dilution air. (Note: If you do not use 
conditioning columns, this measurement is not necessary. If you use 
conditioning columns and take the dilution air from the test cell, you 
may use the ambient humidity for this measurement.)

[[Page 51249]]

Sec. 1065.610  Bag sample analysis.

    (a) Zero the analyzers and obtain a stable zero reading. Recheck 
after tests.
    (b) Introduce span gases and set instrument gains. To avoid errors, 
span and calibrate at the same flow rates used to analyze the test 
sample. Span gases should have concentrations equal to 75 to 100 
percent of full scale. If gain has shifted significantly on the 
analyzers, check the calibrations. Show actual concentrations on the 
chart.
    (c) Check zeroes; repeat the procedure in paragraphs (a) and (b) of 
this section if necessary.
    (d) Check flow rates and pressures.
    (e) Measure HC, CO, and NOX concentrations of samples.
    (f) Check zero and span points. If the difference is greater than 2 
percent of full scale, repeat the procedure in paragraphs (a) through 
(e) of this section.

Sec. 1065.615  Bag sample calculations.

    (a) Calculate the dilution factor. The dilution factor is the ratio 
of the total volume of the raw exhaust to the total volume of the 
diluted exhaust. It is calculated as 134,000 divided by the sum of the 
diluted ppmC concentrations of carbon-containing compounds in the 
exhaust; that is:

DF = 134,000/(CO2sample + THCsample + 
COsample),

Where:

CO2sample and COsample are expressed as ppm, and 
THCsample is expressed as ppmC.

    (b) Calculate mass emission rates
(g/test) for the transient segment using the general equation in 
paragraph (b)(1) of this section:
    (1) The general equation follows:

emission rate = (total dilute exhaust volumetric flow)(ppm)(density 
factor)/106 Mx = 
(Vmix)(Ci)(fdi)/106

Where:

Mx = Mass emission rate in g/test segment.
Vmix = Total dilute exhaust volumetric flow in m3 
per test segment.
Ci = The concentration of species i, in ppm or ppmC, 
corrected for background contribution according to the equation in 
paragraph (b)(2) of this section.
fdi = The density factor for species i. The density factors 
are 576.8 g/m3 for THC, 1913 g/m3 for 
NOX, and 1164 g/m3 for CO.

    (2) The equation for calculating Ci follows:

Ci = Csample - Cbackground [1-(1/DF)]

Where:
Csample = Concentration of species i in the diluted exhaust 
sample, in ppm or ppmC.
Cbackground = Concentration of species i in the dilution air 
background sample, in ppm or ppmC.
DF = Dilution factor, as calculated in paragraph (a) of this section.

    (c) Calculate total brake work done during the emissions sampling 
period of each segment or mode.
    (d) Determine the time duration of the emission sampling period.
    (e) Calculate emissions in g/kW-hr by dividing the mass emission 
rate by the total brake work and the duration of the emission sampling 
period.

Subpart H--Particulate Measurements [Reserved]

Subpart I--Testing With Oxygenated Fuels [Reserved]

Subpart J--Field Testing

Sec. 1065.901  Applicability.

    (a) The test procedures in this subpart measure brake-specific 
emissions from engines while they remain installed in vehicles or 
equipment in the field.
    (b) These test procedures apply to your engines as specified in the 
standard-setting part.

Sec. 1065.905  General provisions.

    (a) Unless the standard-setting part specifies deviations from the 
provisions of this subpart, testing conducted under this subpart must 
conform to all of the provisions of this subpart.
    (b) Testing conducted under this subpart may include any or all 
normal in-use operation of the engine.

Sec. 1065.910  Measurement accuracy and precision.

    (a) Measurement systems used for in-use testing must be accurate to 
within 5 percent compared to engine dynamometer testing 
conducted according to the test procedures of this part that are 
applicable for your engine. These systems must also have a precision of 
5 percent or better. Determine accuracy and precision of an 
in-use system by simultaneously measuring emissions using the engine-
dynamometer test procedures of this part and the in-use system. To have 
a statistically valid sample, measure emissions during at least 3 tests 
each for at least 3 different engines. You must conduct these 
verification tests using the test cycle specified in the standard-
setting part, unless we approve a different test cycle.
    (1) A system must meet the following conditions to be considered 
sufficiently accurate:
    (i) The correlation coefficient (r) for a least-squares linear fit 
that includes the origin must be 0.95 or higher.
    (ii) The average ratio (for all tests) of the emission rate from 
the in-use system divided by the emission rate from the dynamometer 
procedure must be between 0.97 and 1.05.
    (2) For a system to be considered sufficiently precise, the average 
coefficient of variance for all engines must be 5 percent or less for 
each pollutant. (Note: Increasing the length of the sampling period may 
be an effective way to improve precision.)
    (b) Measurement systems that conform to the provisions of 
Secs. 1065.915 through 1065.950 are considered to be in compliance with 
the accuracy and precision requirements of paragraph (a) of this 
section.

Sec. 1065.915  Equipment specifications for SI engines.

    This section describes equipment you may use to measure in-use 
emissions. You may use other equipment and measurement systems that 
conform to the requirements of Secs. 1065.905 and 1065.910.
    (a) The primary components of the in-use measurement system are a 
mass air flow sensor, a portable FID, a zirconia-based NOX 
sensor, a zirconia-based air/fuel ratio sensor, and a portable NDIR 
analyzer.
    (1) The mass air flow sensor must meet the requirements of 
Sec. 1065.930.
    (2) The portable FID must meet the requirements of Sec. 1065.935.
    (3) The NOX and air/fuel sensors must meet the 
requirements of Sec. 1065.940
    (4) The NDIR analyzer must meet the requirements of Sec. 1065.941.
    (b) You must measure the following parameters continuously at a 
rate of 3 Hz or higher and store the data electronically:
    (1) THC, NOX, CO concentrations.
    (2) Air/fuel ratio.
    (3) Intake air flow rate.
    (4) Engine speed.
    (5) Parameters used to calculate torque.
    (c) You must minimize sample line length for any analyzers that 
require a physical sample be drawn from the exhaust to the analyzer 
(i.e., THC and CO analyzers). You must draw these samples at a constant 
flow rate. In no case may you use any combination of sample line length 
and sample flow rate that would result in the length of time necessary 
for the analyzer to reach 90 percent of its final response after a step 
change to the input concentration at the opening of the sample probe 
being greater than 10 seconds. For residence time delays between 1 and 
10 seconds, you must correct the measurements to be consistent with the 
engine speed, torque, and air intake data. You may

[[Page 51250]]

also correct other measurements with less than 1 second lags.
    (d) The sample probes and sensors can be inserted into the exhaust 
pipe, or mounted in an exhaust extension that is connected to the 
exhaust pipe with negligible leaking. The sample probes and sensors 
must be located sufficiently close to the center line of the exhaust 
pipe to minimize boundary layer effects from the wall.

Sec. 1065.920  Equipment setup and test run for SI engines.

    This section describes how to set up the equipment specified in 
Sec. 1065.915, and how to use it to measure in-use emissions from SI 
engines.
    (a) Inspect the vehicle or equipment to determine whether it meets 
any applicable requirements of the standard-setting part. This may 
include requirements related to model year, accumulated hours of 
operation, fuel specifications, maintenance history, engine 
temperatures, etc.
    (b) Perform calibrations as specified in this subpart. In the 
field, this generally will require only zeroing and spanning the 
instruments. However, each instrument must have been fully calibrated 
according to the instrument manufacturer's specifications. Nonlinear 
calibrations generated previously from the full calibration may be used 
after zeroing and spanning the instruments. Spanning can be performed 
using a single gas bottle, consistent with good engineering practice, 
and provided that stability of the span mixture has been demonstrated.
    (c) Connect the data recorder (with any necessary signal 
interpreters or converters) to the engine's electronic control module 
(ECM).
    (d) Disconnect the air intake system as necessary to attach the 
mass air flow sensor. Reconnect the system after attaching the mass air 
flow sensor.
    (e) Attach the sample extension to the exhaust outlet.
    (f) Turn on instruments and allow them to warm up as necessary.
    (g) Begin sampling. You do not need to begin recording the data at 
this point.
    (h) Begin operating the vehicle or equipment in a normal manner. 
(Note: We may require you to operate the vehicle or equipment in a 
specific manner.)
    (i) Begin recording engine speed, engine torque (or surrogate), 
intake air flow, emissions data (THC, NOX, CO, air/fuel 
ratio), and time. This is the beginning of the sampling period.
    (j) Continue recording data and operating the vehicle or equipment 
in a normal manner until the end of the sampling period. The length of 
the sampling period is based on good engineering practice, the 
precision requirements of Sec. 1065.910, and applicable limits in the 
standard-setting part.
    (k) You may measure background concentrations and correct measured 
emission values accordingly. However, if any background corrections are 
equivalent to 5 percent or more of the maximum emissions allowed by the 
appliacble standard, the test shall be voided and repeated in an 
environment with lower background concentrations.

Sec. 1065.925  Calculations.

    (a) [Reserved]
    (b) Convert emission analyzer data to instantaneous concentrations 
in ppm (ppmC for the FID).
    (c) Calculate instantaneous exhaust volumetric flow rates in 
m3/hr:

exhaust flow rate = (intake air flow rate)(1-f/a)

    (d) Calculate instantaneous emission rates (g/hr) using the 
following general equation:

emission rate = (exhaust volumetric flow rate)(ppm)(density factor)/
106
Where:

density factors are 576.8 g/m3 for THC, 1913 g/m3 
for NOX, 1164 g/m3 for CO.
    (e) Integrate instantaneous emission rates for the entire specified 
sample period.
    (f) Determine instantaneous brake torque and speed.
    (g) Calculate instantaneous brake power.
    (h) Integrate instantaneous brake power for the entire specified 
sample period.
    (i) Divide the integrated emission rates by the integrated brake 
power. These are your final brake-specific emission rates.

Sec. 1065.930  Specifications for mass air flow sensors.

    (a) Measure the intake air flow using the engine's mass air flow 
sensor. If the engine is not equipped with a mass air flow sensor, you 
need to install one.
    (b) The sensor design must have an accuracy and precision of 
5 percent under steady-state laboratory conditions.
    (c) The sensor must reach at least 90 percent of its final response 
within 0.3 seconds after any step change to the flow rate greater than 
or equal 80 percent of full scale.
    (d) Calibrate the sensor according to good engineering practice. 
Prior to testing verify for each engine that the sensor accurately 
reads the idle intake air flow rate based on measured manifold 
temperature (TM) and pressure (PM). Use the 
following equation:

Intake air flow = (displacement)(rpm)(volumetric 
efficiency)(PM/101.3 kPa)(293.15/TM)

Sec. 1065.935  Specifications for THC analyzers.

    (a) Use a flame ionization detector (FID).
    (b) The analyzer must have an accuracy and precision of 
2 percent of point or better under steady-state laboratory 
conditions.
    (c) The analyzer must reach at least 90 percent of its final 
response within 1.0 second after any step change to the input 
concentration greater than or equal 80 percent of full scale.
    (d) Zero and span the analyzer daily during testing. Calibrate it 
according to the analyzer manufacturer's specifications.

Sec. 1065.940  Specifications for NOX and air/fuel sensors.

    (a) Use stabilized zirconia-based sensors.
    (b) The sensors must have an accuracy and precision of 
2 percent of point or better under steady-state laboratory 
conditions.
    (c) The sensors must reach at least 90 percent of its final 
response within 1.0 second after any step change to the input 
concentration greater than or equal 80 percent of full scale.
    (d) The sensors must be zeroed and spanned daily during testing, 
and must calibrated according to the sensor manufacturer's 
specifications.

Sec. 1065.945  Specifications for CO analyzers.

    (a) Use a non-dispersive infrared (NDIR) detector that is 
compensated for CO2 and water interference.
    (b) The analyzer must have an accuracy and precision of 
2 percent of point or better under steady-state laboratory 
conditions.
    (c) The analyzer must reach at least 90 percent of its final 
response within 5.0 second after any step change to the input 
concentration greater than or equal 80 percent of full scale.
    (d) The analyzer must be zeroed and spanned daily during testing, 
and must calibrated according to the analyzer manufacturer's 
specifications.

Sec. 1065.950  Specifications for speed and torque measurement.

    (a) Determine torque from a previously determined relationship of 
torque and engine speed, throttle position, and/or manifold absolute 
pressure. Torque estimates must be between 85 percent and 105 percent 
of

[[Page 51251]]

the true value. You can demonstrate compliance with this accuracy 
requirement using steady-state labortory data.
    (b) Measure speed from the engine's electronic control module. 
Speed estimates must be within 5 rpm of the true value.

Subpart K--Definitions and Other Reference Information

Sec. 1065.1000  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 Act gives to them.
    The definitions follow:
    Accuracy means the maximum difference between a measured or 
calculated value and the true value, where the true value is determined 
by NIST.
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
    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.
    Aftertreatment means relating to any system, component, or 
technology mounted downstream of the exhaust valve or exhaust port 
whose design function is to reduce exhaust emissions.
    Auxiliary emission-control device means any element of design that 
senses temperature, engine rpm, motive speed, transmission gear, 
atmospheric pressure, manifold pressure or vacuum, or any other 
parameter to activate, modulate, delay, or deactivate the operation of 
any part of the emission-control system. This also includes any other 
feature that causes in-use emissions to be higher than those measured 
under test conditions, except as we allow under this part.
    Calibration means the set of specifications and tolerances specific 
to a particular design, version, or application of a component or 
assembly capable of functionally describing its operation over its 
working range.
    Certification means obtaining a certificate of conformity for an 
engine family that complies with the emission standards and 
requirements in this part.
    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 governed to operate only at 
its rated speed.
    Designated Officer means the Manager, Engine Compliance Programs 
Group (6403-J), U.S. Environmental Protection Agency, 1200 Pennsylvania 
Ave., Washington, DC 20460.
    Emission-control system means any device, system, or element of 
design that controls or reduces the regulated emissions from an engine.
    Emission-data engine means an engine that is tested for 
certification.
    Emission-related maintenance means maintenance that substantially 
affects emissions or is likely to substantially affect emissions 
deterioration.
    Engine means an engine to which this part applies. For equipment 
subject to this part and regulated under equipment-based standards, the 
term engine in this part shall be interpreted to include equipment.
    Engine-based means having emission standards related to 
measurements using an engine dynamometer, in units of grams of 
pollutant per kilowatt-hour.
    Engine family means a group of engines with similar emission 
characteristics, as specified in the standard-setting part.
    Engine manufacturer has the meaning given in section 216(1) of the 
Act. In general, this term includes any person who manufactures an 
engine for sale in the United States or otherwise introduces a new 
engine into commerce in the United States. This includes importers. For 
equipment subject to this part and regulated under equipment-based 
standards, the term engine manufacturer in this part shall be 
interpreted to include equipment manufacturers.
    Equipment-based means having emission standards related to 
measurements from an engine installed in a vehicle using a chassis 
dynamometer, in units of grams of pollutant per kilometer.
    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.
    Good engineering judgment has the meaning we give it in Sec. 1068.5 
of this chapter.
    Identification number means a unique specification (for example, 
model number/serial number combination) that allows someone to 
distinguish a particular engine from other similar engines.
    Maximum test torque means the torque output observed with the 
maximum fueling rate possible at a given speed.
    Nonmethane hydrocarbons means the sum of all hydrocarbon species 
measured by a FID except methane, expressed with an assumed mass 13.876 
grams per mole of carbon atoms.
    Nonroad means relating to nonroad engines.
    Nonroad engine has the meaning given in Sec. 89.2 of this chapter. 
In general this means all internal combustion engines except motor 
vehicle engines, stationary engines, or engines used solely for 
competition.
    Oxides of nitrogen means the oxides of nitrogen measured by the 
specified test equipment. Specifically, this means nitric oxide (NO) 
and nitrogen dioxide (NO2). Oxides of nitrogen are expressed 
quantitatively as if the NO were in the form of NO2 (assume 
a molecular weight for oxides of nitrogen equivalent to that of 
NO2).
    Precision means two times the coefficient of variance of multiple 
measurements, except where specified otherwise.
    Revoking a certificate of conformity means discontinuing the 
certificate for an engine family. If we revoke a certificate, you must 
apply for a new certificate before continuing to produce the affected 
engines. This does not apply to engines you no longer possess.
    Round means to round numbers according to ASTM E29-93a, which is 
incorporated by reference (see Sec. 1065.1010), unless otherwise 
specified.
    Scheduled maintenance means adjusting, repairing, removing, 
disassembling, cleaning, or replacing components or systems that is 
periodically needed to keep a part from failing or malfunctioning. 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.
    Spark-ignition means relating to a 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.
    Standard-setting part means the part in the Code of Federal 
Regulations that defines emission standards for a particular engine 
(see Sec. 1065.1(a)).
    Stoichiometry means the proportion of a mixture of air and fuel 
such that the fuel is fully oxidized with no remaining oxygen. For 
example, stoichiometric combustion in gasoline engines typically occurs 
at an air-fuel mass ratio of about 14.7.
    Suspending a certificate of conformity means temporarily 
discontinuing the certificate for an engine family. If we

[[Page 51252]]

suspend a certificate, you may not sell engines from that engine family 
unless we reinstate the certificate or approve a new one.
    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.
    Total Hydrocarbon (THC) means the sum of all hydrocarbon species 
measured by a FID, expressed with an assumed mass 13.876 grams per mole 
of carbon atoms.
    Total Hydrocarbon Equivalent means the sum of the carbon mass 
contributions of non-oxygenated hydrocarbons, alcohols and aldehydes, 
or other organic compounds that are measured separately as contained in 
a gas sample, expressed as petroleum-fueled engine hydrocarbons. The 
hydrogen-to-carbon ratio of the equivalent hydrocarbon is 1.85:1.
    United States means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, and the Trust 
Territory of the Pacific Islands.
    Voiding a certificate of conformity means invalidating a 
certificate, so all the engines produced under that engine family for 
that model year are considered noncompliant. If we void a certificate, 
you are liable for each engine produced under the certificate and may 
face civil or criminal penalties or both.
    Voiding an exemption means invalidating an exemption, so all the 
engines produced under that exemption are considered uncertified (or 
nonconforming). If we void an exemption, you are liable for each engine 
produced under the exemption and may face civil or criminal penalties 
or both. You may not produce any additional engines using the 
exemption.

Sec. 1065.1005  Symbols, acronyms, and abbreviations.

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

 deg.C  degrees Celsius.
"  inches.
ASTM  American Society for Testing and Materials.
cc  cubic centimeters.
CFV  critical-flow venturi.
CI  compression-ignition.
CLD  chemiluminescent detector.
CO  carbon monoxide.
CO2  carbon dioxide.
CVS  constant-volume sampler.
EFC  electronic flow control.
EPA  Environmental Protection Agency.
FID  flame ionization detector.
g/kW-hr  grams per kilowatt-hour.
IBP  initial boiling point.
ISO  International Organization for Standardization.
kPa  kilopascal.
LPG  liquefied petroleum gas.
m  meters.
mm Hg  millimeters of mercury.
NDIR  nondispersive infrared.
NIST  National Institute for Standards and Testing.
NMHC  nonmethane hydrocarbons.
NO  nitric oxide.
NO2  nitrogen dioxide.
NOX  oxides of nitrogen (NO and NO2).
O2  oxygen.
PDP  positive-displacement pump.
ppm  parts per million.
rpm  revolutions per minute.
SAE  Society of Automotive Engineers.
SI  spark-ignition.
THC  total hydrocarbon.
THCE  total hydrocarbon equivalent.
U.S.C.  United States Code.

Sec. 1065.1010  Reference materials.

    We have incorporated by reference the documents listed in this 
section. The Director of the Federal Register approved the 
incorporation by reference as prescribed in 5 U.S.C. 552(a) and 1 CFR 
part 51. Anyone may inspect copies at U.S. EPA, OAR, Air and Radiation 
Docket and Information Center, 401 M Street, SW., Washington, DC 20460 
or Office of the Federal Register, 800 N. Capitol St., NW., 7th Floor, 
Suite 700, Washington, DC.
    (a) ASTM material. [Reserved]
    (b) ISO material. Table 2 of Sec. 1065.1010 lists material from the 
International Organization for Standardization that we have 
incorporated by reference. The first column lists the number and name 
of the material. The second column lists the section of this part where 
we reference it. The second column is for information only and may not 
be all-inclusive. Anyone may receive copies of these materials from 
International Organization for Standardization, Case Postale 56, CH-
1211 Geneva 20, Switzerland. Table 2 follows:

               Table 2 of Sec.  1065.1010.--ISO Materials
------------------------------------------------------------------------
        Document No. and name                 Part 1065 reference
------------------------------------------------------------------------
ISO 8178, Reciprocating internal      1065.125, 1065.130, 1065.135.
 combustion engines--Exhaust
 emission measurement.
------------------------------------------------------------------------

    (c) SAE material. [Reserved]

Sec. 1065.1015  Confidential information.

    (a) Clearly show what you consider confidential by marking, 
circling, bracketing, stamping, or some other method. 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.
    (b) 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.
    (c) 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 Sec. 2.204 of this chapter.

PART 1068--GENERAL COMPLIANCE PROVISIONS FOR NONROAD PROGRAMS

Subpart A--Applicability and Miscellaneous Provisions
Sec.
1068.1  Does this part apply to me?
1068.5  How must engine manufacturers apply good engineering 
judgment?
1068.10  How do I request EPA to keep my information confidential?
1068.15  Who is authorized to represent the Agency?
1068.20  May EPA enter my facilities for inspections?
1068.25  What definitions apply to this part?
Subpart B--Prohibited Acts and Related Requirements
1068.101  What general actions does this regulation prohibit?
1068.105  What other provisions apply to me specifically if I 
manufacture equipment needing certified engines?
1068.110  What other provisions apply to engines in service?
1068.115  When must engine manufacturers honor emission-related 
warranty claims?
1068.120  What requirements must I follow to rebuild engines?
1068.125  What happens if I violate the regulations?
Subpart C--Exemptions
1068.201  Does EPA exempt any engines from the prohibited acts?
1068.205  What are the provisions for exempting test engines?
1068.210  What are the provisions for exempting manufacturer-owned 
engines?
1068.215  What are the provisions for exempting display engines?
1068.220  What are the provisions for exempting engines for national 
security?
1068.225  What are the provisions for exempting engines for export?
1068.230  What are the provisions for exempting engines used solely 
for competition?
1068.235  What are the provisions for exempting new replacement 
engines?
1068.240  What temporary provisions address hardship due to unusual 
circumstances?
1068.241  What are the provisions for extending compliance deadlines 
for small-volume manufacturers under hardship?

[[Page 51253]]

1068.245  What are the provisions for exempting engines for hardship 
for equipment manufacturers?
Subpart D--Imports
1068.301  Does this subpart apply to me?
1068.305  How do I get an exemption or exclusion for imported 
engines?
1068.310  What are the exclusions for imported engines?
1068.315  What are the permanent exemptions for imported engines?
1068.320  How must I label an imported engine with a permanent 
exemption?
1068.325  What are the temporary exemptions for imported engines?
1068.330  What are the penalties for violations?
Subpart E--Selective Enforcement Auditing
1068.401  What is a selective enforcement audit?
1068.405  What is in a test order?
1068.410  How must I select and prepare my engines?
1068.415  How do I test my engines?
1068.420  How do I know when my engine family does not comply?
1068.425  What happens if one of my production-line engines exceeds 
the emission standards?
1068.430  What happens if an engine family does not comply?
1068.435  May I sell engines from an engine family with a suspended 
certificate of conformity?
1068.440  How do I ask EPA to reinstate my suspended certificate?
1068.445  When may EPA revoke my certificate under this subpart and 
how may I sell these engines again?
1068.450  What records must I send to EPA?
1068.455  What records must I keep?
Appendix A to Subpart E of Part 1068--Plans for Selective 
Enforcement Auditing
Subpart F--Defect Reporting and Recall
1068.501  How do I report engine defects?
1068.505  How does the recall program work?
1068.510  How do I prepare and apply my remedial plan?
1068.515  How do I mark or label repaired engines?
1068.520  How do I notify affected owners?
1068.525  What records must I send to EPA?
1068.530  What records must I keep?
1068.535  How can I do a voluntary recall for emission-related 
problems?
1068.540  What terms do I need to know for this subpart?
Subpart G--Public Hearings
1068.601  How do I request a public hearing?
1068.605  How will EPA set up a public hearing?
1068.610  What are the procedures for a public hearing?
1068.615  How do I appeal a hearing decision?
1068.620  How does a hearing conclude?
Appendix I to Part 1068--Emission Related Components, Parameters, 
and Specifications

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

Subpart A--Applicability and Miscellaneous Provisions

Sec. 1068.1  Does this part apply to me?

    (a) The provisions of this part apply to everyone with respect to 
the following engines or to equipment using the following engines:
    (1) Large nonroad spark-ignition engines we regulate under 40 CFR 
part 1048.
    (2) Snowmobiles, all-terrain vehicles, and off-highway motorcycles 
we regulate under 40 CFR part 1051.
    (b) This part does not apply to any of the following engine or 
vehicle categories:
    (1) Light-duty motor vehicles (see 40 CFR part 86).
    (2) Heavy-duty motor vehicles and motor vehicle engines (see 40 CFR 
part 86).
    (3) Aircraft engines (see 40 CFR part 87).
    (4) Locomotive engines (see 40 CFR part 92).
    (5) Land-based nonroad diesel engines (see 40 CFR part 89).
    (6) Marine diesel engines (see 40 CFR parts 89 and 94).
    (7) Marine outboard and personal watercraft engines (see 40 CFR 
part 91).
    (8) Small nonroad spark-ignition engines (see 40 CFR part 90).
    (c) For equipment subject to this part and regulated under 
equipment-based standards, interpret the term ``engine'' in this part 
to include equipment (see Sec. 1068.25).
    (d) Follow the provisions of the standard-setting part if they are 
different than any of the provisions in this part.

Sec. 1068.5  How must engine manufacturers apply good engineering 
judgment?

    (a) You must use good engineering judgment for decisions related to 
any requirements under this chapter. This includes your applications 
for certification, any testing you do to show that your production-line 
or in-use engines comply with requirements that apply to them, and how 
you select, categorize, determine, and apply these requirements.
    (b) If we send you a written request, you must give us a written 
description of the engineering judgment in question. Respond within 15 
working days of receiving our request unless we allow more time.
    (c) We may reject your decision if it is not based on good 
engineering judgment or is otherwise inconsistent with the requirements 
that apply, based on the following provisions:
    (1) We may suspend, revoke, or void a certificate of conformity if 
we determine you deliberately used incorrect information or overlooked 
important information, that you did not decide in good faith, or that 
your decision was not rational.
    (2) If we believe a different decision would better reflect good 
engineering judgment, but none of the provisions of paragraph (c)(1) of 
this section apply, we will tell you of our concern (and its basis). 
You will have 30 days to respond to our concerns, or more time if we 
agree that you need it to generate more information. After considering 
your information, we will give you a final ruling. If we conclude that 
you did not use good engineering judgment, we may reject your decision 
and apply the new ruling to similar situations as soon as possible.
    (d) We will tell you in writing of the conclusions we reach under 
paragraph (c) of this section and explain our reasons for them.
    (e) If you disagree with our conclusions, you may file a request 
for a public hearing with the Designated Officer as described in 
subpart F of this part. In your request, specify your objections, 
include data or supporting analysis, and get your authorized 
representative's signature. If we agree that your request raises a 
substantial factual issue, we will hold the hearing according to 
subpart F of this part.

Sec. 1068.10  How do I request EPA to keep my information confidential?

    (a) Clearly identify any information you consider confidential by 
marking, circling, bracketing, stamping, or some other method. 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 
procedure applies equally to the Environmental Appeals Board.
    (b) 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.
    (c) 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 Sec. 2.204 of this chapter.

Sec. 1068.15  Who is authorized to represent the Agency?

    The Administrator of the Environmental Protection Agency or any 
official to whom the Administrator has delegated specific authority may 
represent the Agency. For more information, ask for a copy of the 
relevant sections of the EPA Delegation Manual from the Designated 
Officer.

[[Page 51254]]

Sec. 1068.20  May EPA enter my facilities for inspections?

    (a) If you are a certificate holder, we may inspect your engines, 
testing, manufacturing processes, engine storage facilities (including 
port facilities for imported engines), or records to enforce the 
provisions of this chapter. Inspectors will have authorizing 
credentials and will limit inspections to reasonable times--usually, 
normal operating hours.
    (b) If we come to inspect, we may or may not have a warrant or 
court order.
    (1) If we do not have a warrant or court order, you may deny us 
entry.
    (2) If we have a warrant or court order, you must allow us to enter 
the facility and carry out the activities it describes.
    (c) We may seek a warrant or court order authorizing an inspection 
described in this section, whether or not we first tried to get your 
permission to inspect.
    (d) We may select any facility to do any of the following:
    (1) Inspect and monitor any aspect of engine manufacturing, 
assembly, storage, or other procedures, and any facilities where you do 
them.
    (2) Inspect and monitor any aspect of engine test procedures or 
test-related activities, including test engine selection, preparation, 
service accumulation, emission duty cycles, and maintenance and 
verification of your test equipment's calibration.
    (3) Inspect and copy records or documents related to assembling, 
storing, selecting, and testing an engine.
    (4) Inspect and photograph any part or aspect of engines and 
components you use for assembly.
    (e) You must give us reasonable help without charge during an 
inspection. For example, you may need to help us arrange an inspection 
with the facility's managers, including clerical support, copying, and 
translation. You may also need to show us how the facility operates and 
answer other questions. If we ask in writing to see a particular 
employee at the inspection, you must ensure that he or she is present 
(legal counsel may accompany the employee).
    (f) If you have facilities in other countries, we expect you to 
locate them in places where local law does not keep us from inspecting 
as described in this section. We will not try to inspect if we learn 
that local law prohibits it, but we may suspend your certificate if we 
are not allowed to inspect.

Sec. 1068.25  What definitions apply to this part?

    The following definitions apply to this part:
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
    Aircraft means any vehicle capable of sustained air travel above 
treetop heights.
    Certificate holder means an engine manufacturer (including 
importers) with a valid certificate of conformity for at least one 
engine family in a given calendar year.
    Designated Officer means the Manager of the Engine Programs Group 
(6403-J), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., 
Washington, DC 20460.
    Engine means an engine to which this part applies. For equipment 
subject to this part and regulated under equipment-based standards, the 
term engine in this part shall be interpreted to include equipment.
    Engine-based means having emission standards related to 
measurements using an engine dynamometer, in units of grams of 
pollutant per kilowatt-hour.
    Engine manufacturer has the meaning given in section 216(1) of the 
Act. In general, this term includes any person who manufactures an 
engine for sale in the United States or otherwise introduces a new 
engine into commerce in the United States. This includes importers. For 
equipment subject to this part and regulated under equipment-based 
standards, the term engine manufacturer in this part shall be 
interpreted to include equipment manufacturers.
    Equipment-based means having emission standards related to 
measurements from an engine installed in a vehicle using a chassis 
dynamometer, in units of grams of pollutant per kilometer.
    Equipment manufacturer means any company producing a piece of 
equipment for sale or use in the United States.
    New has the meaning we give it in the standard-setting part.
    Nonroad engine means:
    (1) Except as discussed in paragraph (2) of this definition, a 
nonroad engine is any internal combustion engine:
    (i) In or on a piece of equipment that is self-propelled or serves 
a dual purpose by both propelling itself and performing another 
function (such as garden tractors, off-highway mobile cranes and 
bulldozers); or
    (ii) In or on a piece of equipment that is intended to be propelled 
while performing its function (such as lawnmowers and string trimmers); 
or
    (iii) That, by itself or in or on a piece of equipment, is portable 
or transportable, meaning designed to be and capable of being carried 
or moved from one location to another. Indicia of transportability 
include, but are not limited to, wheels, skids, carrying handles, 
dolly, trailer, or platform.
    (2) An internal combustion engine is not a nonroad engine if:
    (i) The engine is used to propel a motor vehicle or a vehicle used 
solely for competition, or is subject to standards promulgated under 
section 202 of the Act; or
    (ii) The engine is regulated by a federal New Source Performance 
Standard promulgated under section 111 of the Act; or
    (iii) The engine otherwise included in paragraph (1)(iii) of this 
definition remains or will remain at a location for more than 12 
consecutive months or a shorter period of time for an engine located at 
a seasonal source. A location is any single site at a building, 
structure, facility, or installation. Any engine (or engines) that 
replaces an engine at a location and that is intended to perform the 
same or similar function as the engine replaced will be included in 
calculating the consecutive time period. An engine located at a 
seasonal source is an engine that remains at a seasonal source during 
the full annual operating period of the seasonal source. A seasonal 
source is a stationary source that remains in a single location on a 
permanent basis (i.e., at least two years) and that operates at that 
single location approximately three months (or more) each year. This 
paragraph (2)(iii) of this definition does not apply to an engine after 
the engine is removed from the location.
    Operating hours means:
    (1) For engine storage areas or facilities, times during which 
people other than custodians are at work near, and can access, a 
storage area or facility.
    (2) For other areas or facilities, times during which an assembly 
line operates or any of the following activities occurs:
    (i) Testing, maintenance, or service accumulation.
    (ii) Production or compilation of records.
    (iii) Certification testing.
    (iv) Translation of designs from the test stage to the production 
stage.
    (v) Engine manufacture or assembly.
    Piece of equipment means any vehicle, vessel, locomotive, aircraft, 
or other type of equipment using engines to which this part applies.
    Placed into service means used for its intended purpose.
    Standard-setting part means the part in the Code of Federal 
Regulations that defines emission standards for a particular engine 
(see Sec. 1068.1(a)).
    Ultimate purchaser means the first person who in good faith buys a 
new engine without intending to resell it.

[[Page 51255]]

    United States means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, and the Trust 
Territory of the Pacific Islands.
    We (us, our) means the Administrator of the Environmental 
Protection Agency and any authorized representatives.

Subpart B--Prohibited Acts and Related Requirements

Sec. 1068.101  What general actions does this regulation prohibit?

    (a) The following prohibitions apply to manufacturers of new 
engines and manufacturers of equipment containing these engines, except 
as described in subparts C and D of this part:
    (1) You may not sell, offer for sale, or introduce or deliver into 
commerce in the United States or import into the United States any new 
engine or equipment after emission standards take effect for that 
engine or equipment, unless it has a valid certificate of conformity 
for its model year and the required label or tag. You also may not take 
any of the actions listed in the previous sentence with respect to any 
equipment containing an engine subject to this part's provisions, 
unless the engine has a valid certificate of conformity for its model 
year and the required engine label or tag. This requirement also covers 
new engines you produce to replace an older engine in a piece of 
equipment, unless the engine qualifies for the replacement-engine 
exemption in Sec. 1068.235. The maximum civil penalty is $27,500 for 
each engine in violation.
    (2) This chapter requires you to record certain types of 
information to show that you meet our standards. You may not omit these 
requirements to make and maintain required records (including those 
described in Sec. 1068.501). You may not deny us access to or copying 
of your records if we have the authority to see or copy them. Also, you 
may not delay or omit giving us required reports or information. The 
maximum civil penalty is $27,500 for each day in violation.
    (3) You may not keep us from entering your facility to test engines 
or inspect if we are authorized to do so. Also, you may not omit tests 
we require (or omit having the tests done for you). The maximum civil 
penalty is $27,500 for each day in violation.
    (b) The following prohibitions apply to everyone with respect to 
the engines to which this part applies:
    (1) You may not remove or disable a device or element of design 
that may affect an engine's emission levels. This restriction applies 
before and after the engine is placed in service. Section 1068.120 
describes how this applies to rebuilding engines. For a manufacturer or 
dealer, the maximum civil penalty is $27,500 for each engine in 
violation. For anyone else, the maximum civil penalty is $2,500 for 
each engine in violation. This does not apply in any of the following 
situations:
    (i) You need to repair an engine and you restore it to proper 
functioning when the repair is complete.
    (ii) You need to modify an engine to respond to a temporary 
emergency and you restore it to proper functioning as soon as possible.
    (iii) You modify a new engine that another manufacturer has already 
certified to meet emission standards, intending to recertify it under 
your own engine family. In this case you must tell the original 
manufacturer not to include the modified engines in the original engine 
family.
    (2) You may not knowingly manufacture, sell, offer to sell, or 
install, an engine part if one of its main effects is to bypass, 
impair, defeat, or disable the engine's control of emissions. The 
maximum civil penalty is $2,500 for each part in violation.
    (3) For an engine that is excluded from any requirements of this 
chapter because it is a stationary engine, you may not move it or 
install it in any mobile equipment, except as allowed by the provisions 
of this chapter. You may not circumvent or attempt to circumvent the 
residence-time requirements of paragraph (2)(iii) of the nonroad engine 
definition in Sec. 1068.25. The maximum civil penalty is $27,500 for 
each day in violation.
    (4) For an engine or piece of equipment that is excluded from any 
requirements of this chapter because it is to be used solely for 
competition, you may not use it in a manner that is inconsistent with 
use solely for competition. The maximum civil penalty is $27,500 for 
each day in violation.
    (c) Exemptions from these prohibitions are described in subparts C 
and D of this part.
    (d) The standard-setting parts describe more requirements and 
prohibitions that apply to engine manufacturers (including importers) 
and others under this chapter.
    (e) The maximum penalties in paragraphs (a) and (b) of this section 
and in Sec. 1068.125(b) are in 1970 dollars. The Federal Civil 
Penalties Inflation Adjustment Act of 1990 (Public Law 101-410, 104 
Stat. 890 and 28 U.S.C. 2461) and associated regulations describe how 
to adjust these figures based on the date of the violation.

Sec. 1068.105  What other provisions apply to me specifically if I 
manufacture equipment needing certified engines?

    (a) Transitioning to new standards. You may use up your normal 
inventory of engines not certified to new emission standards if they 
were built before the date of the new standards. However, stockpiling 
these engines violates Sec. 1068.101(a)(1).
    (b) Installing engines. You must follow the engine manufacturer's 
emission-related installation instructions. For example, you may need 
to constrain where you place an exhaust aftertreatment device or 
integrate into your equipment models a device for sending visual or 
audible signals to the operator. Not meeting the manufacturer's 
emission-related installation instructions is a violation of 
Sec. 1068.101(b)(1).
    (c) Attaching a duplicate label. If you obscure the engine's label, 
you must do three things to avoid violating Sec. 1068.101(a)(1):
    (1) Permanently attach to your equipment a duplicate label. Secure 
it to a part needed for normal operation and not normally requiring 
replacement.
    (2) Make sure your label is identical to the engine label. You may 
make the label yourself or get it from the engine manufacturer.
    (3) Make sure an average person can easily read it.
    (d) Producing nonroad equipment certified to highway emission 
standards. You may produce nonroad equipment from complete or 
incomplete motor vehicles with the motor vehicle engine if you meet 
three criteria:
    (1) The engine or vehicle is certified to 40 CFR part 86.
    (2) The engine is not adjusted outside the manufacturer's 
specifications.
    (3) The engine or vehicle is not modified in any way that may 
affect its emission control. This applies to evaporative emission 
controls, but not refueling emission controls.

Sec. 1068.110  What other provisions apply to engines in service?

    (a) Aftermarket parts and service. As the engine manufacturer, you 
may not require anyone to use your parts or service to maintain or 
repair an engine, unless we approve this in your application for 
certification.
    (b) Certifying aftermarket parts. As the manufacturer or rebuilder 
of an aftermarket engine part, you may--but are not required to--
certify according to

[[Page 51256]]

Sec. 85.2114 of this chapter that using the part will not cause engines 
to fail to meet emission standards.
    (c) Defeat devices. We may test equipment or engines to investigate 
potential defeat devices. We may also require the engine manufacturer 
to do this testing. If we choose to investigate one of your designs, we 
may require you to show us that it does not have a defeat device. To do 
this, you may have to share with us information regarding test 
programs, engineering evaluations, design specifications, calibrations, 
on-board computer algorithms, and design strategies.
    (d) Warranty and maintenance. Owners may make warranty claims 
against the engine manufacturer for emission-related parts, as 
described in Sec. 1068.115. This generally includes any emission-
related engine parts that were not in common use before we have adopted 
emission standards. In general, we consider replacement or repair of 
any other components to be the owner's responsibility. The warranty 
period begins when the engine is first placed into service.

Sec. 1068.115  When must engine manufacturers honor emission-related 
warranty claims?

    (a) As an engine manufacturer, you may not deny emission-related 
warranty claims based on any of the following:
    (1) Maintenance or other service you or your authorized facilities 
performed.
    (2) Engine repair work that an operator performed to correct an 
unsafe, emergency condition attributable to you, as long as the 
operator tries to restore the engine to its proper configuration as 
soon as possible.
    (3) Any action or inaction by the operator unrelated to the 
warranty claim.
    (4) Maintenance that was performed more frequently than you 
specify.
    (5) Anything that is your fault or responsibility.
    (6) The use of any fuel that is commonly available where the engine 
operates, unless your written maintenance instructions state that this 
fuel would harm the engine's emission control system and operators can 
readily find the proper fuel.
    (b) As long as none of the restrictions of paragraph (a) of this 
section apply, you may deny an emission-related warranty claim if 
either of the following occurs:
    (1) Owners are not able to show they followed your written 
maintenance instructions, as described in paragraph (c) of this 
section.
    (2) You prove that the warranty claim was caused by any of the 
following:
    (i) The operator abused the engine by using it for purposes for 
which it was not designed.
    (ii) Someone improperly installed an engine part or set engine 
parameters outside your specified adjustable ranges during any 
scheduled maintenance related to the affected part or system.
    (iii) Someone permanently removed or disabled the engine's emission 
control system or any of its components during unscheduled maintenance 
related to the affected part or system.
    (c) You may ask owners to show they followed your written 
maintenance instructions only if you have an objective reason to 
believe they did not follow these instructions and that this would have 
caused the defect that is the subject of their warranty claim.
    (1) If owners do their own maintenance, they may state that they 
performed the prescribed maintenance at the approximate intervals (in 
months or operating hours) and show they bought and used proper parts. 
You may ask them to show they are able to perform the maintenance 
properly.
    (2) If owners hire others to maintain their engines, they may rely 
on service receipts or a maintenance log book validated at the 
approximate intervals (in months or operating hours) by those who 
performed the maintenance.

Sec. 1068.120  What requirements must I follow to rebuild engines?

    (a) This section describes the steps to take when rebuilding 
engines to avoid violating the tampering prohibition in 
Sec. 1068.101(b)(1). These requirements apply to anyone rebuilding an 
engine subject to this part, but the reporting requirements in 
paragraphs (i) and (j) of this section apply only to businesses.
    (b) The term ``rebuilding'' refers to a partial or complete rebuild 
of an engine or engine system, including a major overhaul in which you 
replace the engine's power assemblies or make other changes that 
significantly increase the service life of the engine. It also includes 
replacing or rebuilding an engine's turbocharger or aftercooler or its 
systems for fuel metering or electronic control. For these provisions, 
rebuilding may or may not involve removing the engine from the 
equipment. For other maintenance or service that is not rebuilding, you 
must still not make changes that might increase emissions, but you do 
not need to keep any records.
    (c) If you rebuild an engine, you must have a reasonable technical 
basis for knowing that the rebuilt engine has the same emissions 
performance as the engine in its certified configuration. Identify the 
model year of the resulting engine configuration. You have a reasonable 
basis if you meet two main conditions:
    (1) Install parts--new, used, or rebuilt--so a person familiar with 
engine design and function would reasonably believe that the engine 
with those parts will control emissions to the same degree as with the 
original parts.
    (2) Adjust parameters or change design elements only according to 
the original engine manufacturer's instructions. Or, if you differ from 
these instructions, you must have data or some other technical basis to 
show you should not expect in-use emissions to increase.
    (d) If the rebuilt engine remains installed or is reinstalled in 
the same piece of equipment, you must rebuild it to the original 
configuration or another certified configuration of the same or later 
model year.
    (e) If the rebuilt engine replaces another engine in a piece of 
equipment, you must rebuild it to a certified configuration that equals 
the emissions performance of the engine you are replacing.
    (f) Do not erase or reset emission-related codes or signals from 
onboard monitoring systems without diagnosing and responding 
appropriately to any diagnostic codes. This requirement applies 
regardless of the manufacturer's reason for installing the monitoring 
system and regardless of its form or interface. Clear any codes from 
diagnostic systems when you return the rebuilt engine to service. Do 
not disable a diagnostic signal without addressing its cause.
    (g) When you rebuild an engine, check, clean, adjust, repair, or 
replace all emission-related components (listed in Appendix I of this 
part) as needed according to the original manufacturer's recommended 
practice. In particular, replace oxygen sensors, replace the catalyst 
if there is evidence of malfunction, clean gaseous fuel system 
components, and replace fuel injectors (if applicable).
    (h) If you are installing an engine that someone else has rebuilt, 
check all emission-related components listed in Appendix I of this part 
as needed according to the original manufacturer's recommended 
practice.
    (i) Keep at least the following records:
    (1) Identify the hours of operation (or mileage, as appropriate) at 
time of rebuild.
    (2) Identify the work done on the engine or any emission-related 
control components, including a listing of parts and components you 
used.
    (3) Describe any engine parameter adjustments.

[[Page 51257]]

    (4) Identify any emission-related codes or signals you responded to 
and reset.
    (j) You must show us or send us your records if we ask for them. 
Keep records for at least two years after rebuilding an engine. Keep 
them in any format that allows us to readily review them.
    (1) You do not need to keep information that is not reasonably 
available through normal business practices. We do not expect you to 
have information that you cannot reasonably access.
    (2) You do not need to keep records of what other companies do.
    (3) You may keep records based on engine families rather than 
individual engines if that is the way you normally do business.

Sec. 1068.125  What happens if I violate the regulations?

    (a) Civil penalties and injunctions. We may bring a civil action to 
assess and recover civil penalties and/or enjoin and restrain 
violations in the United States District Court for the district where 
you allegedly violated a requirement, or the district where you live or 
have your main place of business. Actions to assess civil penalties or 
restrain violations of Sec. 1068.101 must be brought by and in the name 
of the United States. The selected court has jurisdiction to restrain 
violations and assess civil penalties.
    (1) To determine the amount of a civil penalty and reach a just 
conclusion, the court considers six main factors:
    (i) The seriousness of your violation.
    (ii) How much you benefitted or saved because of the violation.
    (iii) The size of your business.
    (iv) Your history of compliance with Title II of the Act.
    (v) What you did to remedy the violation.
    (vi) How the penalty will affect your ability to continue in 
business.
    (2) Subpoenas for witnesses who must attend a district court in any 
district may apply to any other district.
    (b) Administrative penalties. Instead of bringing a civil action, 
we may assess administrative penalties if the total is less than 
$200,000 against you individually. This maximum penalty may be greater 
if the Administrator and the Attorney General jointly determine that is 
appropriate for administrative penalty assessment. No court may review 
such a determination. Before we assess an administrative penalty, you 
may ask for a hearing (subject to 40 CFR part 22).
    (1) To determine the amount of an administrative penalty, we will 
consider the factors described in paragraph (a)(1) of this section.
    (2) An administrative order we issue under this paragraph (b) 
becomes final 30 days after we issue it, unless you ask for judicial 
review by that time (see paragraph (c) of this section). You may ask 
for review by any of the district courts listed in paragraph (a) of 
this section. Send the Administrator a copy of the filing by certified 
mail.
    (3) We will not pursue an administrative action for a violation if 
either of the following two conditions is true:
    (i) We are separately prosecuting the violation under this part.
    (ii) We have issued a final order for a violation, no longer 
subject to judicial review, for which you have already paid a penalty.
    (c) Judicial review. If you ask a court to review a civil or 
administrative penalty, we will file in the appropriate court within 30 
days of your request a certified copy or certified index of the record 
on which the court or the Administrator issued the order.
    (1) The judge may set aside or remand any order issued under this 
section only if he or she believes one of the following is true:
    (i) Substantial evidence does not exist in the record, taken as a 
whole, to support finding a violation.
    (ii) The Administrator's assessment of the penalty is an abuse of 
discretion.
    (2) The judge may add civil penalties if he or she believes our 
penalty is an abuse of discretion that favors you.
    (d) Effect of enforcement actions on other requirements. Our 
pursuit of civil or administrative penalties does not affect or limit 
our authority to enforce any provisions of this chapter.
    (e) Penalties. In any proceedings, the United States government may 
seek to collect civil penalties assessed under this section.
    (1) Once a penalty assessment is final, if you do not pay it, the 
Administrator will ask the Attorney General to bring a civil action in 
an appropriate district court to recover the money. We may collect 
interest from the date of the final order or final judgment at rates 
established by the Internal Revenue Code of 1986 (26 U.S.C. 
6621(a)(2)). In this action to collect overdue penalties, the court 
will not review the validity, amount, and appropriateness of the 
penalty.
    (2) In addition, if you do not pay the full amount of a penalty on 
time, you must then pay more to cover interest, enforcement expenses 
(including attorney's fees and costs for collection), and a quarterly 
nonpayment penalty for each quarter you do not pay. The nonpayment 
penalty is 10 percent of your total penalties plus any unpaid 
nonpayment penalties from previous quarters.

Subpart C--Exemptions

Sec. 1068.201  Does EPA exempt any engines from the prohibited acts?

    We may exempt new engines from the prohibited acts in subpart B of 
this part under requirements described in this subpart. We may exempt 
an engine already placed in service in the United States from the 
prohibition in Sec. 1068.101(b)(1) if the exemption for engines used 
solely for competition applies (see Sec. 1068.230).
    (a) This subpart identifies which engines qualify for exemptions 
and what information we need. We may ask for more information.
    (b) If you violate any of the terms, conditions, instructions, or 
requirements to qualify for an exemption, we may void the exemption.
    (c) If you use an exemption under this subpart, we may require you 
to add a permanent label to your exempted engines.
    (d) If you produce engines we exempt under this subpart, we may 
require you to make and keep records, perform tests, make reports and 
provide information as needed to reasonably evaluate the validity of 
the exemption.
    (e) If you own or operate engines we exempt under this subpart, we 
may require you to provide information as needed to reasonably evaluate 
the validity of the exemption.
    (f) Subpart D of this part describes how we apply these exemptions 
to engines you import (or intend to import).
    (g) If you want to ask for an exemption or need more information, 
write to the Designated Officer.

Sec. 1068.205  What are the provisions for exempting test engines?

    (a) We may exempt engines you use for research, investigations, 
studies, demonstrations, or training.
    (b) Anyone may ask for a testing exemption.
    (c) If you are a certificate holder, you may request an exemption 
for engines you intend to include in test programs over a two-year 
period.
    (1) In your request, tell us the maximum number of engines involved 
and describe how you will make sure exempted engines are used only for 
this testing.
    (2) Give us the information described in paragraph (d) of this 
section if we ask for it.
    (d) If you are not a certificate holder do all of the following:

[[Page 51258]]

    (1) Show that the proposed test program has a valid purpose under 
paragraph (a) of this section.
    (2) Show you need an exemption to achieve the purpose of the test 
program (time constraints may be a basis for needing an exemption, but 
the cost of certification alone is not).
    (3) Estimate the duration of the proposed test program and the 
number of engines involved.
    (4) Allow us to monitor the testing.
    (5) Describe how you will ensure that you stay within this 
exemption's purposes. Address at least the following things:
    (i) The technical nature of the test.
    (ii) The test site.
    (iii) The duration and accumulated engine operation associated with 
the test.
    (iv) Ownership of the engines involved in the test.
    (v) The intended final disposition of the engines.
    (vi) How you will identify, record, and make available the engine 
identification numbers.
    (vii) The means or procedure for recording test results.
    (e) If we approve your request for a testing exemption, we will 
send you a letter or a memorandum for your signature describing the 
basis and scope of the exemption. It will also include any necessary 
terms and conditions, which normally require you to do the following:
    (1) Stay within the scope of the exemption.
    (2) Create and maintain adequate records that we may inspect.
    (3) Add a permanent, legible label, written in block letters in 
English, to a readily visible part of each exempted engine. This label 
must include at least the following items:
    (i) The label heading ``EMISSION CONTROL INFORMATION.''
    (ii) Your corporate name and trademark.
    (iii) Engine displacement, engine family identification, and model 
year of the engine or whom to contact for further information.
    (iv) The statement ``THIS ENGINE IS EXEMPT UNDER 40 CFR 1068.205 
FROM EMISSION STANDARDS AND RELATED REQUIREMENTS.''.
    (4) Tell us when the test program is finished.
    (5) Tell us the final disposition of the engines.
    (6) Send us a written confirmation that you meet the terms and 
conditions of this exemption.

Sec. 1068.210  What are the provisions for exempting manufacturer-owned 
engines?

    (a) You are only eligible for the exemption for manufacturer-owned 
engines if you are a certificate holder.
    (b) An engine may be exempt without a request if it is a 
nonconforming engine under your ownership and control and you operate 
it to develop products, assess production methods, or promote your 
engines in the marketplace. You may not lease, sell, or use the engine 
to generate revenue, either by itself or in a piece of equipment.
    (c) To use this exemption, you must do three things:
    (1) Establish, maintain, and keep adequately organized and indexed 
information on each exempted engine, including the engine 
identification number, the use of the engine on exempt status, and the 
final disposition of any engine removed from exempt status.
    (2) Let us access these records, as described in Sec. 1068.20.
    (3) Add a permanent, legible label, written in block letters in 
English, to a readily visible part of each exempted engine. This label 
must include at least the following items:
    (i) The label heading ``EMISSION CONTROL INFORMATION.''
    (ii) Your corporate name and trademark.
    (iii) Engine displacement, engine family identification, and model 
year of the engine or whom to contact for further information.
    (iv) The statement ``THIS ENGINE IS EXEMPT UNDER 40 CFR 1068.210 
FROM EMISSION STANDARDS AND RELATED REQUIREMENTS.''.

Sec. 1068.215  What are the provisions for exempting display engines?

    (a) You are only eligible for the exemption for display engines if 
you are a certificate holder.
    (b) A display engine is exempt without a request if it is a 
nonconforming engine you use only for displays in the interest of a 
business or the general public. This exemption does not apply to 
engines displayed for any of the following:
    (1) For private use.
    (2) For other purposes that are not available to the public daily.
    (3) For any other purpose we determine is inappropriate for a 
display exemption.
    (c) You may operate the exempted engine, but only if the operation 
is part of the display. You may not sell or lease a display engine or 
use it to generate revenue without a certificate of conformity and an 
engine label.
    (d) To use this exemption, you must add a permanent, legible label, 
written in block letters in English, to a readily visible part of each 
exempted engine. This label must include at least the following items:
    (1) The label heading ``EMISSION CONTROL INFORMATION.''
    (2) Your corporate name and trademark.
    (3) Engine displacement, engine family identification, and model 
year of the engine or whom to contact for further information.
    (4) The statement ``THIS ENGINE IS EXEMPT UNDER 40 CFR 1068.215 
FROM EMISSION STANDARDS AND RELATED REQUIREMENTS.''.

Sec. 1068.220  What are the provisions for exempting engines for 
national security?

    (a) You are only eligible for the exemption for national security 
if you are an engine manufacturer.
    (b) Your engine is exempt without a request if you produce it for a 
piece of equipment owned or used by an agency of the federal government 
responsible for national defense, where the equipment has armor, 
permanently attached weaponry, or other substantial features typical of 
military combat.
    (c) You may request a national security exemption for engines not 
meeting the conditions of paragraph (b) of this section, as long as 
your request is endorsed by an agency of the federal government 
responsible for national defense. In your request, explain why you need 
the exemption.

Sec. 1068.225  What are the provisions for exempting engines for 
export?

    (a) If you export a new engine to a country with emission standards 
identical to ours, we will not exempt it. These engines must comply 
with our certification requirements.
    (b) If you export an engine to a country with different emission 
standards or no emission standards, it is exempt from the prohibited 
acts in this part without a request. If you produce an exempt engine 
for export and it is sold or offered for sale to someone in the United 
States (except for export), we will void the exemption.
    (c) Label each exempted engine and shipping container with a label 
or tag showing the engine is not certified for sale or use in the 
United States. The label must include at least the statement ``THIS 
ENGINE IS SOLELY FOR EXPORT AND IS THEREFORE IS EXEMPT UNDER 40 CFR 
1068.225 FROM U.S. EMISSION STANDARDS AND RELATED REQUIREMENTS.''.

[[Page 51259]]

Sec. 1068.230  What are the provisions for exempting engines used 
solely for competition?

    (a) If you modify an engine after it has been placed into service 
in the United States so it will be used solely for competition, it is 
exempt without request. This exemption applies only to the prohibition 
in Sec. 1068.101(b)(1) and is valid only as long as the engine is used 
solely for competition.
    (b) If you modify an engine under this exemption, you must destroy 
the original emissions label. If you sell or give one of these engines 
to someone else, you must tell the new owner in writing that it may be 
used only for competition.
    (c) New engines you produce that are used solely for competition 
are generally excluded from emission standards. See the standard-
setting parts for specific provisions.

Sec. 1068.235  What are the provisions for exempting new replacement 
engines?

    (a) You are only eligible for the exemption for new replacement 
engines if you are a certificate holder.
    (b) The prohibitions in Sec. 1068.101(a)(1) do not apply to an 
engine if all the following conditions apply:
    (1) You produce a new engine to replace an engine already placed in 
service in a piece of equipment.
    (2) The engine being replaced was manufactured before the emission 
standards that would otherwise apply to the new engine took effect.
    (3) No engine certified to current emission requirements is 
available with the appropriate physical or performance characteristics 
for the piece of equipment.
    (4) You or your agent takes possession of the old engine.
    (5) You clearly label the replacement engine with the following 
language, or similar alternate language that we approve:

    THIS ENGINE DOES NOT COMPLY WITH FEDERAL NONROAD OR HIGHWAY 
EMISSION REQUIREMENTS. SELLING OR INSTALLING THIS ENGINE FOR ANY 
PURPOSE OTHER THAN AS A REPLACEMENT ENGINE IN A VEHICLE OR PIECE OF 
EQUIPMENT BUILT BEFORE JANUARY 1, [INSERT APPROPRIATE YEAR] IS A 
VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.

    (6) You make the replacement engine in a configuration identical in 
all material respects to the engine being replaced (or that of another 
certified engine of the same or later model year). This requirement 
applies only if the old engine was certified to emission standards less 
stringent than those in effect when you produce the replacement engine.

Sec. 1068.240  What temporary provisions address hardship due to 
unusual circumstances?

    (a) After considering the circumstances, we may permit you to 
introduce into commerce engines or equipment that do not comply with 
emission standards if all the following conditions and requirements 
apply:
    (1) Unusual circumstances that are clearly outside your control and 
that could not have been avoided with reasonable discretion prevent you 
from meeting requirements from this chapter.
    (2) You exercised prudent planning and were not able to avoid the 
violation; you have taken all reasonable steps to minimize the extent 
of the nonconformity.
    (3) Not having the exemption will jeopardize the solvency of your 
company.
    (4) No other allowances are available under the regulations in this 
chapter to avoid the impending violation.
    (b) To apply for an exemption, you must send the Designated Officer 
a written request as soon as possible before you are in violation. In 
your request, show that you meet all the conditions and requirements in 
paragraph (a) of this section.
    (c) Include in your request a plan showing how you will meet all 
the applicable requirements as quickly as possible.
    (d) You must give us other relevant information if we ask for it.
    (e) We may include reasonable additional conditions on an approval 
granted under this section, including provisions to recover or 
otherwise address the lost environmental benefit or paying fees to 
offset any economic gain resulting from the exemption. For example, in 
the case of multiple tiers of emission standards, we may require that 
you meet the less stringent standards.

Sec. 1068.241  What are the provisions for extending compliance 
deadlines for small-volume manufacturers under hardship?

    (a) After considering the circumstances, we may extend the 
compliance deadline for you to meet new or revised emission standards, 
as long as you meet all the conditions and requirements in this 
section.
    (b) To be eligible for this exemption, you must qualify under the 
standard-setting part for special provisions for small businesses or 
small-volume manufacturers.
    (c) To apply for an extension, you must send the Designated Officer 
a written request. In your request, show that all the following 
conditions and requirements apply:
    (1) You have taken all possible business, technical, and economic 
steps to comply.
    (i) In the case of importers, show that you are unable to find a 
manufacturer capable of supplying complying products.
    (ii) For all other manufacturers, show that the burden of 
compliance costs prevents you from meeting the requirements of this 
chapter.
    (2) Not having the exemption will jeopardize the solvency of your 
company.
    (3) No other allowances are available under the regulations in this 
chapter to avoid the impending violation.
    (d) In describing the steps you have taken to comply under 
paragraph (c)(1) of this section, include at least the following 
information:
    (1) Describe your business plan, showing the range of projects 
active or under consideration.
    (2) Describe your current and projected financial standing, with 
and without the burden of complying with regulations.
    (3) Describe your efforts to raise capital to comply with 
regulations.
    (4) Identify the engineering and technical steps you have taken or 
plan to take to comply with regulations.
    (5) Identify the level of compliance you can achieve. For example, 
you may be able to produce engines that meet a somewhat less stringent 
emission standard than the regulations in this chapter require.
    (e) Include in your request a plan showing how you will meet all 
the applicable requirements as quickly as possible.
    (f) You must give us other relevant information if we ask for it.
    (g) An authorized representative of your company must sign the 
request and include the statement: ``All the information in this 
request is true and accurate, to the best of my knowledge.''.
    (h) Send your request for this extension at least nine months 
before the relevant deadline. If different deadlines apply to companies 
that are not small-volume manufacturers, do not send your request 
before the regulations in question apply to the other manufacturers. 
Otherwise, do not send your request more than three years before the 
relevant deadline.
    (i) We may include reasonable requirements on an approval granted 
under this section, including provisions to recover or otherwise 
address the lost environmental benefit. For example, we may require 
that you meet a less stringent emission standard or buy and use 
available emission credits.

[[Page 51260]]

    (j) We will approve extensions of up to one year. We may review and 
revise an extension as reasonable under the circumstances.

Sec. 1068.245  What are the provisions for exempting engines for 
hardship for equipment manufacturers?

    (a) Equipment exemption. As an equipment manufacturer in the case 
of an engine-based standard, you may ask for approval to produce 
exempted equipment for up to one year. Send the Designated Officer a 
written request for an exemption before you are in violation. In your 
request, show you are not at fault for the impending violation and that 
you would face serious economic hardship if we do not grant the 
exemption. This exemption is not available if you manufacture the 
engine you need for your own equipment, unless we allow it elsewhere in 
this chapter. We may impose other conditions, including provisions to 
recover the lost environmental benefit.
    (b) Engine exemption. As an engine manufacturer, you may produce 
nonconforming engines for the equipment we exempt in paragraph (a) of 
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. Add a permanent, legible label, written in block letters 
in English, to a readily visible part of each exempted engine. 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 (in liters), rated power, and model year of 
the engine or whom to contact for further information.
    (4) The statement ``THIS ENGINE IS EXEMPT UNDER 40 CFR 1068.245 
FROM EMISSION STANDARDS AND RELATED REQUIREMENTS.''.

Subpart D--Imports

Sec. 1068.301  Does this subpart apply to me?

    (a) This subpart applies to you if you import into the United 
States engines or equipment subject to our emission standards or 
equipment containing engines subject to our emission standards.
    (b) In general, engines that you import must be covered by a 
certificate of conformity unless they were built before emission 
standards started to apply. This subpart describes the limited cases 
where we allow importation of exempt or excluded engines.
    (c) The U.S. Customs Service may prevent you from importing an 
engine if you do not meet the requirements of this subpart. In 
addition, U.S. Customs Service regulations may contain other 
requirements for engines imported into the United States (see 19 CFR 
Chapter I).

Sec. 1068.305  How do I get an exemption or exclusion for imported 
engines?

    (a) Prepare a written request in which you do the following:
    (1) Give your name, address, telephone number, and taxpayer 
identification number.
    (2) Give the engine owner's name, address, telephone number, and 
taxpayer identification number.
    (3) Identify the make, model, identification number, and original 
production year of each engine.
    (4) Identify which exemption or exclusion in this subpart allows 
you to import a nonconforming engine and describe how your engine 
qualifies.
    (5) Tell us where you will keep your engines if you might need to 
store them until we approve your request.
    (6) Authorize us to inspect or test your engines as the Act allows.
    (b) We may ask for more information.
    (c) You may import the nonconforming engines you identify in your 
request if you get prior written approval from us. The U.S. Customs 
Service may require you to show them the approval letter. We may 
temporarily or permanently approve the exemptions or exclusions, as 
described in this subpart.
    (d) Make sure the engine meets any labeling requirements that 
apply, as described in this subpart.

Sec. 1068.310  What are the exclusions for imported engines?

    The emission standards of this part do not apply to excluded 
engines that you import. If you show us that your engines qualify under 
one of the following provisions, we will approve your request to 
exclude engines:
    (a) Engines used solely for competition. See the standard-setting 
part for any special provisions that apply to engines used solely for 
competition. Section 1068.101(b)(4) prohibits using these engines for 
other purposes.
    (b) Stationary engines. This includes engines that will be used in 
a permanently fixed location and engines meeting the criteria for the 
exclusion in paragraph (2)(iii) of the nonroad engine definition in 
Sec. 1068.25. Section 1068.101(b)(3) prohibits using these engines for 
other purposes.
    (c) Hobby engines. See 40 CFR 90.1.
    (d) Engines used in aircraft. See 40 CFR part 87.
    (e) Engines used in underground mining. See 40 CFR 89.1.

Sec. 1068.315  What are the permanent exemptions for imported engines?

    We may approve a permanent exemption for an imported engine under 
the following conditions:
    (a) National security exemption. You may an import engine under the 
national security exemption in Sec. 1068.220.
    (b) Manufacturer-owned engine exemption. You may import a 
manufacturer-owned engine, as described in Sec. 1068.210.
    (c) Replacement engine exemption. You may import a nonconforming 
replacement engine as described in Sec. 1068.235. To use this 
exemption, you must be a certificate holder for an engine family we 
regulate under the same part as the replacement engine.
    (d) Extraordinary circumstances exemption. You may import a 
nonconforming engine if we grant hardship relief as described in 
Sec. 1068.240.
    (e) Hardship exemption. You may import a nonconforming engine if we 
grant an exemption for the transition to new or revised emission 
standards, as described in Sec. 1068.245.
    (f) Identical configuration exemption. You may import a 
nonconforming engine if it is identical to certified engines, subject 
to the following provisions:
    (1) You may import only the following engines under this exemption:
    (i) Large nonroad spark-ignition engines (see part 1048 of this 
chapter).
    (ii) Recreational nonroad spark-ignition engines and equipment (see 
part 1051 of this chapter).
    (2) You must meet all the following criteria:
    (i) You have owned the engine for at least one year.
    (ii) You agree not to sell, lease, donate, trade, or otherwise 
transfer ownership of the engine for at least five years, or until the 
engine is eligible for the exemption in paragraph (h) of this section. 
The only acceptable way to dispose of the engine is to destroy or 
export it.
    (iii) You use data or evidence sufficient to show that the engine 
is in a configuration that is the same as an engine the original 
manufacturer has certified to meet emission standards that apply at the 
time the manufacturer finished assembling or modifying the engine in 
question. If you modify the engine to make it identical, you must 
follow the original manufacturer's complete written instructions.

[[Page 51261]]

    (3) We will tell you in writing if we find the information 
insufficient to show that the engine is eligible for this exemption. In 
this case, we will not consider your request further until you address 
our concerns.
    (g) Personal-use exemption. You may import a nonconforming engine 
for your personal use.
    (1) You may import only the number of engines shown in the 
following Table 1 during your lifetime:

Table 1 of Sec.  1068.315.--Number of Engines Allowed Under the Personal-
                              Use Exemption
------------------------------------------------------------------------
                                                 Standard-     Maximum
          Type of engine or equipment             setting     number of
                                                    part       engines
------------------------------------------------------------------------
Large nonroad spark-ignition engines..........         1048            1
------------------------------------------------------------------------
Recreational nonroad spark-ignition engines            1051            3
 and equipment................................
------------------------------------------------------------------------

    (2) To use this exemption, you must meet both the following 
criteria:
    (i) You have owned the engine for at least one year.
    (ii) You agree not to sell, lease, donate, trade, or otherwise 
transfer ownership of the engine for at least five years, or until the 
engine is eligible for the exemption in paragraph (h) of this section. 
The only acceptable way to dispose of the engine is to destroy or 
export it.
    (3) You do not need our approval, but you must send the Designated 
Officer a form in which you do the following:
    (i) Identify the engine importer's name, address, telephone number, 
and taxpayer identification number.
    (ii) Identify your name, address, telephone number, and taxpayer 
identification number.
    (iii) State the number of each type of engine that you have ever 
imported under this exemption.
    (iv) State that you agree not to sell or lease the engine in the 
United States.
    (v) Identify the engine's make, model, and identification number as 
well as the year the manufacturer finished assembling the engine.
    (vi) Authorize us to inspect as the Act and the regulations permit.
    (4) Respond promptly if we ask for more information.
    (h) Ancient engine exemption. If you are not the original engine 
manufacturer, you may import a nonconforming engine that was first 
manufactured at least 21 years earlier, as long as it is still in its 
original configuration.

Sec. 1068.320  How must I label an imported engine with a permanent 
exemption?

    (a) For engines imported under Sec. 1068.315 (a), (b), (c), (d), or
    (e), you must place a permanent label or tag on each engine. If no 
specific label requirements from subpart C of this part apply, you must 
meet the following requirements:
    (1) Attach the label or tag in one piece so no one can remove it 
without destroying or defacing it.
    (2) Make sure it is durable and readable for the engine's entire 
life.
    (3) Secure it to a part of the engine needed for normal operation 
and not normally requiring replacement.
    (4) Write it in block letters in English.
    (5) Make it readily visible to the average person after the engine 
is installed in the equipment.
    (b) On the engine label or tag, do the following:
    (1) Include the heading ``Emission Control Information.''
    (2) Include your full corporate name and trademark.
    (3) State the engine displacement (in liters) and rated power.
    (4) State: ``THIS ENGINE IS EXEMPT FROM THE REQUIREMENTS OF 
[identify the part referenced in 40 CFR 1068.1(a) that would otherwise 
apply], AS PROVIDED IN [identify the paragraph authorizing the 
exemption (for example, ``40 CFR 1068.315(a)'')]. INSTALLING THIS 
ENGINE IN ANY DIFFERENT APPLICATION IS A VIOLATION OF FEDERAL LAW 
SUBJECT TO CIVIL PENALTY.''.
    (c) Get us to approve alternate label language if it is more 
accurate for your engine.

Sec. 1068.325  What are the temporary exemptions for imported engines?

    If we approve a temporary exemption for an engine, you may import 
it under the conditions in this section. We may ask the U.S. Customs 
Service to require a specific bond amount to make sure you comply with 
the requirements of this subpart. You may not sell or lease one of 
these engines while it is in the United States. You must eventually 
export the engine as we describe in this section unless you get a 
certificate of conformity for it or it qualifies for one of the 
permanent exemptions in Sec. 1068.315.
    (a) Exemption for repairs or alterations. You may temporarily 
import a nonconforming engine under bond solely to repair or alter it. 
You may operate the engine in the United States only to repair or alter 
it or to ship it to or from the service location. Export the engine 
directly after the engine servicing is complete.
    (b) Testing exemption. You may temporarily import a nonconforming 
engine under bond for testing if you follow the requirements of 
Sec. 1068.205. You may operate the engine in the United States only to 
allow testing. This exemption expires one year after you import the 
engine, unless we approve a one-time request for an extension of up to 
one more year. The engine must be exported before the exemption 
expires.
    (c) Display exemption. You may temporarily import a nonconforming 
engine under bond for display, as described in Sec. 1068.215. This 
exemption expires one year after you import the engine, unless we 
approve your request for an extension. We may approve an extension of 
up to one more year for each request, but no more than three years in 
total. The engine must be exported by the time the exemption expires or 
directly after the display concludes, whichever comes first.
    (d) Export exemption. You may temporarily import a nonconforming 
engine to export it, as described in Sec. 1068.225. You may operate the 
engine in the United States only as needed to prepare it for export. 
Label the engine as described in Sec. 1068.225.
    (e) Diplomatic or military exemption. You may temporarily import 
nonconforming engines without bond if you represent a foreign 
government in a diplomatic or military capacity. In your request to the 
Designated Officer (see Sec. 1068.305), include either written 
confirmation from the U.S. State Department that you qualify for this 
exemption or a copy of your orders for military duty in the United 
States. We will rely on the State Department or your military orders to 
determine when your diplomatic or military status expires, at which 
time you must export your exempt engines.

Sec. 1068.330  What are the penalties for violations?

    (a) All imported engines. Unless you comply with the provisions of 
this subpart, importation of nonconforming engines is violation of 
sections 203 and 213(d) of the Act. You may then have to export the 
engines, or pay civil penalties, or both. The U.S. Customs Service may 
seize unlawfully imported engines.
    (b) Temporarily imported engines. If you do not comply with the 
provisions of this subpart for a temporary exemption, you may forfeit 
the total amount of the bond in addition to the sanctions we identify 
in paragraph (a) of this section. We will consider an engine

[[Page 51262]]

to be exported if it has been destroyed or delivered to the U.S. 
Customs Service for export or other disposition under applicable 
Customs laws and regulations. EPA or the U.S. Customs Service may offer 
you a grace period to allow you to export a temporarily exempted engine 
without penalty after the exemption expires.

Subpart E--Selective Enforcement Auditing

Sec. 1068.401  What is a selective enforcement audit?

    (a) We may conduct or require you to conduct emission tests on your 
production engines in a selective enforcement audit. This requirement 
is independent of any requirement for you to routinely test production-
line engines.
    (b) If we send you a signed test order, you must follow its 
directions and the provisions of this subpart. We will tell you where 
to test the engines. This may be where you produce the engines or any 
other emission testing facility.
    (c) If we select one or more of your engine families for a 
selective enforcement audit, we will send the test order to the person 
who signed the application for certification or we will deliver it in 
person.
    (d) Within one working day of receiving the test order, notify the 
Designated Officer which test facility you have selected for emission 
testing.
    (e) You must do everything we require in the audit without delay.

Sec. 1068.405  What is in a test order?

    (a) In the test order, we will specify the following things:
    (1) The engine family and configuration (if any) we have identified 
for testing.
    (2) The engine assembly plant, storage facility, or (if you import 
the engines) port facility from which you must select engines.
    (3) The procedure for selecting engines for testing, including a 
selection rate.
    (4) The test procedures, duty cycles, and test points, as 
appropriate, for testing the engines to show that they meet emission 
standards.
    (b) We may state that we will select the test engines.
    (c) We may identify alternate engine families or configurations for 
testing in case we determine the intended engines are not available for 
testing or if you do not produce enough engines to meet the minimum 
rate for selecting test engines.
    (d) We may include other directions or information in the test 
order.
    (e) We may ask you to show us that you meet any additional 
requirements that apply to your engines (closed crankcases, for 
example).
    (f) In anticipation of a potential audit, you may give us a list of 
your preferred engine families and the corresponding assembly plants, 
storage facilities, or (if you import the engines) port facilities from 
which we should select engines for testing. The information would only 
apply for a single model year, so it would be best to include this 
information in your application for certification. If you give us this 
list before we issue a test order, we will consider your 
recommendations, but we may select engines differently.
    (g) If you also do routine production-line testing with the 
selected engine family in the same time period, the test order will 
tell you what changes you might need to make in your production-line 
testing schedule.

Sec. 1068.410  How must I select and prepare my engines?

    (a) Selecting engines. Select engines as described in the test 
order. If you are unable to select test engines this way, you may ask 
us to approve an alternate plan, as long as you make the request before 
you start selecting engines.
    (b) Assembling engines. Produce and assemble test engines using 
your normal production and assembly process for that engine family.
    (1) Notify us directly if you make any change in your production, 
assembly, or quality control processes that might affect emissions 
between the time you receive the test order and the time you finish 
selecting test engines.
    (2) If you do not fully assemble engines at the specified location, 
we will describe in the test order how to select components to finish 
assembling the engines. Assemble these components onto the test engines 
using your documented assembly and quality control procedures.
    (c) Modifying engines. Once an engine is selected for testing, 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 allows your action.
    (3) We approve your action in advance.
    (d) 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.
    (e) Setting adjustable parameters. Before any test, we may adjust 
or require you to adjust any adjustable parameter to any setting within 
its physically adjustable range.
    (1) We may adjust idle speed outside the physically adjustable 
range as needed 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 make or specify adjustments within the physically 
adjustable range by considering their effect on emission levels, as 
well as how likely it is someone will make such an adjustment with in-
use engines.
    (f) Stabilizing emission levels. Before you test production-line 
engines, you may operate the engine to stabilize the emission levels. 
Using good engineering judgment, operate your engines in a way that 
represents the way production engines will be used. You may operate 
each engine for no more than the greater of two periods:
    (1) 50 hours.
    (2) The number of hours you operated your emission-data engine for 
certifying the engine family (see 40 CFR part 1065, subpart E).
    (g) 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 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. 1068.450, all 
adjustments or repairs you make on test engines before each test.
    (h) Shipping engines. If you need to ship engines to another 
facility for testing, make sure the test engines arrive at the test 
facility within 24 hours after being selected. You may ask that we 
allow more time if you are unable to do this.
    (i) Retesting after invalid tests. You may retest an engine if you 
determine an emission test is invalid. Explain in your written report 
reasons for invalidating any test and the emission results from all 
tests. If you retest an engine and, within ten days after testing, ask 
to substitute results of the new tests for the original ones, we will 
answer within ten days after we receive your information.

Sec. 1068.415  How do I test my engines?

    (a) Use the test procedures in part 1065 of this chapter that apply 
to your engines to show they meet emission standards. The test order 
will give further testing instructions.

[[Page 51263]]

    (b) If no test cells are available at a given facility, you may 
make alternate testing arrangements with our approval.
    (c) Test at least two engines in each 24-hour period (including 
void tests). However, if your projected U.S. nonroad engine sales are 
less than 7,500 for the year, you may test a minimum of one engine per 
24-hour period. If you request and justify it, we may approve a lower 
testing rate.
    (d) Accumulate service on test engines at a minimum rate of 6 hours 
per engine during each 24-hour period. The first 24-hour period for 
service accumulation begins when you finish preparing an engine for 
testing. The minimum service accumulation rate does not apply on 
weekends or holidays. You may ask us to approve a lower service 
accumulation rate. Plan your service accumulation to allow testing at 
the rate specified in Sec. 1068.415. Select engine operation for 
accumulating operating hours on your test engines to represent normal 
in-use engine operation for the engine family.
    (e) Test engines is the same order you select them.

Sec. 1068.420  How do I know when my engine family does not comply?

    (a) A failed engine is one whose final deteriorated test results 
exceed an applicable emission standard for any regulated pollutant.
    (b) Continue testing engines until you reach a pass decision for 
all pollutants or a fail decision for one pollutant.
    (c) You reach a pass decision when the number of failed engines is 
less than or equal to the pass decision number in Appendix A to this 
subpart for the total number of engines tested. You reach a fail 
decision when the number of failed engines is greater than or equal to 
the fail decision number in Appendix A to this subpart for the total 
number of engines you test. An acceptable quality level of 40 percent 
is the basis for the pass or fail decision.
    (d) Consider test results in the same order as the engine testing 
sequence.
    (e) If you reach a pass decision for one pollutant, but need to 
continue testing for another pollutant, we will disregard these later 
test results for the pollutant with the pass decision.
    (f) Appendix A to this subpart lists multiple sampling plans. Use 
the sampling plan for the projected sales volume you reported in your 
application for the audited engine family.
    (g) We may choose to stop testing after any number of tests.
    (h) If we test some of your engines in addition to your own 
testing, we may decide not to include your test results as official 
data for those engines if there is substantial disagreement between 
your testing and our testing. We will reinstate your data as valid if 
you show us that we made an error and your data are correct.
    (i) If we rely on our test data instead of yours, we will notify 
you in writing of our decision and the reasons we believe your facility 
is not appropriate for doing the tests we require under this subpart. 
You may request in writing that we consider your test results from the 
same facility for future testing if you show us that you have made 
changes to resolve the problem.

Sec. 1068.425  What happens if one of my production-line engines 
exceeds the emission standards?

    (a) If one of your production-line engines fails to meet one or 
more emission standards (see Sec. 1068.420), the certificate of 
conformity is automatically suspended for that engine. You must take 
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 in your written report a description of the test 
results and the remedy for each engine (see Sec. 1068.450).
    (b) You may at any time ask for a hearing to determine whether the 
tests and sampling methods were proper (see Sec. 1068.601).

Sec. 1068.430  What happens if an engine family does not comply?

    (a) We may suspend your certificate of conformity for an engine 
family if it fails to comply under Sec. 1068.420. 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 became noncompliant. 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 to determine whether the tests and 
sampling methods were proper (see Sec. 1068.601). If we agree before a 
hearing that we used erroneous information in deciding to suspend the 
certificate, we will reinstate the certificate.

Sec. 1068.435  May I sell 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 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. 1068.440  How do I ask EPA to reinstate my suspended certificate?

    (a) Send us a written report asking us to reinstate your suspended 
certificate. In your report, identify the reason for noncompliance, 
propose a remedy, 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. 1068.445  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:
    (1) You do not meet the reporting requirements.
    (2) Your engine family fails to meet emission standards and your 
proposed remedy to address a suspended certificate 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 applicable requirements.
    (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. 1068.450  What records must I send to EPA?

    (a) Within 30 calendar days of the end of each audit, send us a 
report with the following information:

[[Page 51264]]

    (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 your test engines, 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 
for each test engine.
    (4) Identify where you accumulated hours of operation on the 
engines and describe the procedure and schedule you used.
    (5) Provide the test number; the date, time and duration of 
testing; test procedure; initial test results before and after 
rounding; final test results; and final deteriorated test results for 
all tests. Provide the emission figures for all measured pollutants. 
Include information for both valid and invalid tests and the reason for 
any invalidation.
    (6) 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 equipment.
    (7) Report on each failed engine as described in Sec. 1068.425.
    (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.
    (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 testing conformed completely with the requirements of 
40 CFR part 1068. We have not changed production processes or 
quality-control procedures for the engine family in a way that might 
affect the emission control from production engines. 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 reports of your testing to the Designated 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. We will release information about your sales or 
production volumes, which is all we will consider confidential.

Sec. 1068.455  What records must I keep?

    (a) We may review your records at any time, so it is important to 
keep required information readily available. Organize and maintain your 
records as described in this section.
    (b) Keep paper records for testing under this subpart for one full 
year after you complete all the testing required for the selective 
enforcement audit. For additional storage, you may use any format or 
media.
    (c) Keep a copy of the written reports described in Sec. 1068.450.
    (d) Keep the following additional records:
    (1) The names of supervisors involved in each test.
    (2) The name of anyone who authorizes adjusting, repairing, 
preparing, or modifying a test engine and the names of all supervisors 
who oversee this work.
    (3) 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.
    (4) Any records related to your audit that are not in the written 
report.
    (5) A brief description of any significant events during testing 
not otherwise described in the written report or in this section.
    (e) If we ask, you must give us projected or actual production for 
an engine family. Include each assembly plant if you produce engines at 
more than one plant.
    (f) We may ask you to keep or send other information necessary to 
implement this subpart.

Appendix A to Subpart E of Part 1068--Plans for Selective 
Enforcement Auditing

    The following tables describe sampling plans for selective 
enforcement audits, as described in Sec. 1068.420:

                                      Table A-1.--Sampling Plan Code Letter
----------------------------------------------------------------------------------------------------------------
                                                                            Minimum number of tests    Maximum
                                                                          --------------------------------------
       Projected engine family sales                Code letter\1\                                     number of
                                                                             to pass      to fail       tests
----------------------------------------------------------------------------------------------------------------
20-50.....................................  AA...........................            3            5           20
----------------------------------------------------------------------------------------------------------------
20-99.....................................  A............................            4            6           30
----------------------------------------------------------------------------------------------------------------
100-299...................................  B............................            5            6           40
----------------------------------------------------------------------------------------------------------------
300-499...................................  C............................            5            6           50
----------------------------------------------------------------------------------------------------------------
500+......................................  D............................            5            6          60
----------------------------------------------------------------------------------------------------------------
\1\ A manufacturer may optionally use either the sampling plan for code letter ``AA'' or sampling plan for code
  letter ``A'' for Selective Enforcement Audits of engine families with annual sales between 20 and 50 engines.
  Additionally, the manufacturer may switch between these plans during the audit.

                      Table A-2.--Sampling Plans for Different Engine Family Sales Volumes
----------------------------------------------------------------------------------------------------------------
                               AA                 A                 B                 C                 D
        Stagea         -----------------------------------------------------------------------------------------
                        pass  #  fail  #  pass  #  fail  #  pass  #  fail  #  pass  #  fail  #  pass  #  fail  #
----------------------------------------------------------------------------------------------------------------
1.....................  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......
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2.....................  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......
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[[Page 51265]]

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[[Page 51266]]

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46....................  .......  .......  .......  .......  .......  .......      22       27       22       28
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47....................  .......  .......  .......  .......  .......  .......      22       27       22       28
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48....................  .......  .......  .......  .......  .......  .......      23       27       23       29
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49....................  .......  .......  .......  .......  .......  .......      23       27       23       29
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50....................  .......  .......  .......  .......  .......  .......      26       27       24       30
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51....................  .......  .......  .......  .......  .......  .......  .......  .......      24       30
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52....................  .......  .......  .......  .......  .......  .......  .......  .......      25       31
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53....................  .......  .......  .......  .......  .......  .......  .......  .......      25       31
----------------------------------------------------------------------------------------------------------------
54....................  .......  .......  .......  .......  .......  .......  .......  .......      26       32
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55....................  .......  .......  .......  .......  .......  .......  .......  .......      26       32
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56....................  .......  .......  .......  .......  .......  .......  .......  .......      27       33
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57....................  .......  .......  .......  .......  .......  .......  .......  .......      27       33
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58....................  .......  .......  .......  .......  .......  .......  .......  .......      28       33
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59....................  .......  .......  .......  .......  .......  .......  .......  .......      28       33
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60....................  .......  .......  .......  .......  .......  .......  .......  .......      32      33
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a Stage refers to the cumulative number of engines tested.

Subpart F--Defect Reporting and Recall

Sec. 1068.501  How do I report engine defects?

    (a) As an engine manufacturer, if you learn that an emission-
related defect exists in the number of engines identified as Number to 
Submit Defect Report in Table 1 of Sec. 1068.501, you must send the 
Designated Officer a report within 15 working days and follow the other 
instructions in this section. This requirement applies whether you 
learn of the defects from a method you established to track safety or 
performance characteristics, from the investigation procedures set 
forth in paragraph (d) of this section, or from any other information.
    (1) Include each occurrence of the defect in the count of engines, 
rather than limiting it to individual engine families or a single model 
year.
    (2) Include all defects you observe for the following periods:
    (i) For engines with rated power under 225 kW, five years from the 
end of each engine's model year.
    (ii) For engines with rated power 225 kW or greater, eight years 
from the end of each engine's model year.
    (3) Count an engine even if you correct the defect before it 
reaches the ultimate buyer.
    (4) Table 1 follows:

           Table 1 of Sec.  1068.501.--Number of Engines for Filing Report or Commencing Investigation
----------------------------------------------------------------------------------------------------------------
                                         If component is anything but a          If component is a catalyst
                                                    catalyst               -------------------------------------
                                    ---------------------------------------
    Number of engines in family          Number to                              Number to       Number to submit
                                          commence       Number to submit        commence        defect report
                                       Investigation       defect report      Investigation
----------------------------------------------------------------------------------------------------------------
10,000.............................                400                 25                 200                 13
20,000.............................                800                 50                 400                 25
30,000.............................              1,200                 75                 600                 38
40,000.............................              1,600                100                 800                 50
50,000.............................              2,000                125               1,000                 63
60,000.............................              2,400                150               1,200                 75
70,000.............................              2,800                175               1,400                 88
80,000.............................              3,200                200               1,600                100
90,000.............................              3,600                225               1,800                113
100,000............................              4,000                250               2,000                125
200,000 or more....................               4000                250                2000                125
----------------------------------------------------------------------------------------------------------------

[[Page 51267]]

    (b) Include the following information in your report (in this 
general outline format):
    (1) State your corporate name.
    (2) Describe the defect.
    (3) Describe which engines may have the defect, including engine 
model, range of production dates, purchaser, and any other information 
that may be needed to identify the affected engines.
    (4) Estimate the number of each class or category of affected 
engines that have or may have the defect and explain how you determined 
this number.
    (5) Identify where you produced each class or category of affected 
engines.
    (6) Evaluate the emissions impact of the defect
    (7) Describe any operational or performance problems a defective 
engine might have.
    (8) Include any available emission data related to the defect.
    (9) Describe your plan for addressing the defect.
    (c) If you revise or later obtain information required by paragraph 
(b) of this section, send it to us as it becomes available.
    (d) As an engine manufacturer, you must conduct an investigation to 
determine if an emission-related defect exists in the Number to Submit 
Defect Report or more of your engines as follows:
    (1) If any of the following contingencies occur you must start an 
investigation to determine if a defect exists in the Number to Submit 
Defect Report or more of your engines:
    (i) The number of Federal warranty claims for a specific emission-
related component is at the number identified as the Number to Commence 
an Investigation in Table 1 of this section. Federal warranty claims 
are warranty claims submitted pursuant to any warranty established 
under Title II of the Clean Air Act or other warranty applicable to an 
emission-related device or element of design as specified in Appendix 
VIII of 40 CFR part 85.
    (ii) Systems you have for monitoring information from dealers, hot 
line complaints, or other information systematically submitted, 
indicates a higher than normal occurrence of potential defects in an 
emission-related component or element of design.
    (iii) Any other information indicates that there may be a defect in 
an emission-related component or element of design.
    (2) If any of the contingencies set forth in paragraph (d)(1) of 
this section occur, then you shall promptly commence and conduct an 
investigation to determine if a specific emission-related defect exists 
and if it is present in the Number to Submit Defect Report or more 
engines. The investigation shall be performed in a thorough manner, 
shall include consideration of all relevant information, and shall be 
conducted in accordance with scientific and engineering principles. 
Relevant information to be considered shall include information on 
design, function, rate of failure, use, and any other information 
available to you.
    (3) If an investigation concludes with the determination that there 
is not an emission-related defect in at least as many engines as the 
Number to Submit Defect Report, then you shall make a determination 
whether to commence a continued investigation. A continued 
investigation should be commenced if there is an indication that there 
may be new information which would indicate the existence of an 
emission related-defect in the Number to Submit Defect Report or more 
engines.
    (4) Even if an investigation is being conducted or in any other 
event, if you have actual knowledge of an emission-related defect in 
the Number to Submit Defect Report or more of your engines, you must 
timely submit a report to the Designated Officer, as set forth in 
paragraph (a) of this section.

Sec. 1068.505  How does the recall program work?

    (a) If we determine that a substantial number of properly 
maintained and used engines do not meet the requirements of this 
chapter throughout their useful life, we will tell you in writing. Our 
notice will identify the class or category of engines affected and 
describe how we reached our conclusion. If this happens, you must meet 
the requirements and follow the instructions in this subpart. You must 
remedy at your expense noncompliant engines that have been properly 
maintained and used. You may not transfer this expense to a dealer or 
equipment manufacturer through a franchise or other agreement.
    (b) You may ask for a hearing if you disagree with our 
determination (see Sec. 1068.601)
    (c) Unless we withdraw the determination of noncompliance, you must 
respond to it by sending a remedial plan to the Designated Officer by 
the later of these two deadlines:
    (1) Within 60 days after we notify you.
    (2) Within 60 days after a public hearing.
    (d) If you learn that your engine family does not meet the 
requirements of this chapter and we have not ordered you to recall 
noncomplying engines, you may voluntarily recall them, as described in 
Sec. 1068.535.
    (e) Once you have sold an engine to the ultimate purchaser, we may 
inspect or test the engine only if he or she permits it, or if state or 
local inspection programs separately provide for it.

Sec. 1068.510  How do I prepare and apply my remedial plan?

    (a) In your remedial plan, describe all of the following:
    (1) The class or category of engines to be recalled, including the 
number of engines involved and the model year or other information 
needed to identify the engines.
    (2) The modifications, alterations, repairs, corrections, 
adjustments, or other changes you will make to correct the affected 
engines.
    (3) A brief description of the studies, tests, and data that 
support the effectiveness of the remedy you propose to use.
    (4) The instructions you will send to those who will repair the 
engines under the remedial plan.
    (5) How you will determine the owners' names and addresses.
    (6) How you will notify owners; include copies of any notification 
letters.
    (7) The proper maintenance or use you will specify, if any, as a 
condition to be eligible for repair under the remedial plan. Describe 
how owners should show they meet your conditions.
    (8) The steps owners must take for you to do the repair. You may 
set a date or a range of dates, specify the amount of time you need, 
and designate certain facilities to do the repairs.
    (9) Which company (or group) you will assign to do or manage the 
repairs.
    (10) If your employees or authorized warranty agents will not be 
doing the work, state who will and say they can do it.
    (11) How you will ensure an adequate and timely supply of parts.
    (12) The effect of proposed changes on fuel consumption, 
driveability, and safety of the engines you will recall; include a 
brief summary of the information supporting these conclusions.
    (13) How you intend to label the engines you repair and where you 
will place the label on the engine (see Sec. 1068.515).
    (b) We may require you to add information to your remedial plan.
    (c) We may require you to test the proposed repair to show it will 
remedy the noncompliance.
    (d) Use all reasonable means to locate owners. We may require you 
to use government or commercial registration

[[Page 51268]]

lists to get owners' names and addresses, so your notice will be 
effective.
    (e) The maintenance or use that you specify as a condition for 
eligibility under the remedial plan may include only things you can 
show would cause noncompliance. Do not require use of a component or 
service identified by brand, trade, or corporate name, unless we 
approved this approach with your original certificate of conformity. 
Also, do not place conditions on who maintained the engine.
    (f) We may require you to adjust your repair plan if we determine 
owners would be without their engines or equipment for an unreasonably 
long time.
    (g) We will tell you in writing within 15 days of receiving your 
remedial plan whether we have approved or disapproved it. We will 
explain our reasons for any disapproval.
    (h) Begin notifying owners within 15 days after we approve your 
remedial plan. If we hold a public hearing, but do not change our 
position about the noncompliance, you must begin notifying owners 
within 60 days after we complete the hearing, unless we specify 
otherwise.

Sec. 1068.515  How do I mark or label repaired engines?

    (a) Attach a label to each engine you repair under the remedial 
plan. At your discretion, you may label or mark engines you inspect but 
do not repair.
    (b) Make the label from a durable material suitable for its planned 
location. Make sure no one can remove the label without destroying it.
    (c) On the label, designate the specific recall campaign and state 
where you repaired or inspected the engine.
    (d) We may waive or modify the labeling requirements if we 
determine they are overly burdensome.

Sec. 1068.520  How do I notify affected owners?

    (a) Notify owners by first class mail, unless we say otherwise. We 
may require you to use certified mail. Include the following things in 
your notice:
    (1) State: ``The U.S. Environmental Protection Agency has 
determined that your engine may be emitting pollutants in excess of the 
Federal emission standards, as defined in Title 40 of the Code of 
Federal Regulations. These emission standards were established to 
protect the public health or welfare from air pollution.''.
    (2) State that you (or someone you designate) will repair these 
engines at your expense.
    (3) If we approved maintenance and use conditions in your remedial 
plan, state that you will make these repairs only if owners show their 
engines meet the conditions for proper maintenance and use. Describe 
these conditions and how owners should prove their engines are eligible 
for repair.
    (4) Describe the components your repair will affect and say 
generally how you will repair the engines.
    (5) State that the engine, if not repaired, may fail an emission 
inspection test if state or local law requires one.
    (6) Describe how not repairing the engine will harm its performance 
or driveability.
    (7) Describe how not repairing the engine will harm the functions 
of other engine components.
    (8) Specify the date you will start the repairs, the amount of time 
you will need to do them, and where you will do them. Include any other 
information owners may need to know.
    (9) Include a self-addressed card that owners can mail back if they 
have sold the engine (or equipment in which the engine is installed); 
include a space for owners to write the name and address of a buyer.
    (10) State that owners should call you at a phone number you give 
to report any difficulty in obtaining repairs.
    (11) State: ``To ensure your full protection under the emission 
warranty on your engine by federal law, and your right to participate 
in future recalls, we recommend you have your engine serviced as soon 
as possible. We may consider your not servicing it to be improper 
maintenance.''.
    (b) We may require you to add information to your notice or to send 
more notices.
    (c) You may not in any communication with owners or dealers say or 
imply that your noncompliance does not exist or that it will not 
degrade air quality.

Sec. 1068.525  What records must I send to EPA?

    (a) Send us a copy of all communications related to the remedial 
plan you sent to dealers and others doing the repairs. Mail or e-mail 
us the information at the same time you send it to others.
    (b) From the time you begin to notify owners, send us a report 
within 25 days of the end of each calendar quarter. Send reports for 
six consecutive quarters or until all the engines are inspected, 
whichever comes first. In these reports, identify the following:
    (1) The range of dates you needed to notify owners.
    (2) The total number of notices sent.
    (3) The number of engines you estimate fall under the remedial plan 
(explain how you determined this number).
    (4) The cumulative number of engines you inspected under the 
remedial plan.
    (5) The cumulative number of these engines you found needed the 
specified repair.
    (6) The cumulative number of these engines you have repaired.
    (7) The cumulative number of engines you determined to be 
unavailable due to exportation, theft, retirement, or other reasons 
(specify).
    (8) The cumulative number of engines you disqualified for not being 
properly maintained or used.
    (c) If your estimated number of engines falling under the remedial 
plan changes, change the estimate in your next report and add an 
explanation for the change.
    (d) We may ask for more information.
    (e) We may waive reporting requirements or adjust the reporting 
schedule.
    (f) If anyone asks to see the information in your reports, we will 
follow the provisions of Sec. 1068.10 for handling confidential 
information.

Sec. 1068.530  What records must I keep?

    We may review your records at any time, so it is important that you 
keep required information readily available. Keep records associated 
with your recall campaign for three years after you complete your 
remedial plan. Organize and maintain your records as described in this 
section.
    (a) Keep a paper copy of the written reports described in 
Sec. 1068.525.
    (b) Keep a record of the names and addresses of owners you 
notified. For each engine, state whether you did any of the following:
    (1) Inspected the engine.
    (2) Disqualified the engine for not being properly maintained or 
used.
    (3) Completed the prescribed repairs.
    (c) You may keep the records in paragraph (b) of this section in 
any form we can inspect, including computer databases.

Sec. 1068.535  How can I do a voluntary recall for emission-related 
problems?

    (a) To do a voluntary recall, first send the Designated Officer a 
plan, following the guidelines in Sec. 1068.510. Within 15 days, we 
will send you our comments on your plan.
    (b) Once we approve your plan, start notifying owners and carrying 
out the specified repairs.
    (c) From the time you start the recall campaign, send us a report 
within 25

[[Page 51269]]

days of the end of each calendar quarter, following the guidelines in 
Sec. 1068.525(b). Send reports for six consecutive quarters or until 
all the engines are inspected, whichever comes first.
    (d) Keep your reports and the supporting information as described 
in Sec. 1068.530.

Sec. 1068.540  What terms do I need to know for this subpart?

    The following terms apply to this subpart:
    Days means calendar days.
    Owner means someone who owns an engine affected by a remedial plan 
or someone who owns a piece of equipment that has one of these engines.

Subpart G--Public Hearings

Sec. 1068.601  How do I request a public hearing?

    (a) File a request for a hearing with the Designated Officer within 
15 days of a decision to suspend, revoke, or void your certificate or 
within 30 days after we send you our conclusions for rejecting your use 
of good engineering judgment. If you ask later, we may give you a 
hearing for good cause, but we do not have to.
    (b) Include the following in your request for a public hearing:
    (1) State which engine family is involved.
    (2) State the issues you intend to raise. We may limit these 
issues, as described elsewhere in the regulations.
    (3) Summarize the evidence supporting your position and state why 
you believe this evidence justifies reinstating the certificate.
    (c) We will hold the hearing as described in this subpart.

Sec. 1068.605  How will EPA set up a public hearing?

    (a) A Presiding Officer and one or more Judicial Officers will hold 
public hearings.
    (b) Presiding Officers must be an administrative law judge 
appointed according to 5 U.S.C. 3105 (see also 5 CFR part 930, as 
amended).
    (c) The Administrator will appoint EPA employees as Judicial 
Officers. Judicial Officers must meet the following qualifications and 
perform the following functions:
    (1) Qualifications. Judicial Officers may be permanent or temporary 
employees of EPA who handle other duties for the Agency. Judicial 
Officers may not be employed by the Office of Enforcement and 
Compliance Assurance or have any connection with preparing or 
presenting evidence for any hearing held under this section. Judicial 
Officers must be graduates of an accredited law school and members in 
good standing of a recognized bar association of any state or the 
District of Columbia.
    (2) Functions. The Administrator may consult with the Judicial 
Officers or delegate all or part of the Administrator's authority to 
act under this section to the Officers. But the Officers must be able 
to refer any motion or case to the Administrator whenever appropriate.
    (d) We may determine that your request for a hearing does not raise 
a genuine, substantial question of fact or law concerning suspension of 
your certificate of conformity. If so, we may enter an order denying 
your request and reaffirm the suspension or revocation. This order has 
the force and effect of the Administrator's final decision.
    (1) In the case of emission levels causing an engine family to be 
noncompliant, you may question only our decision on whether the tests 
and sampling methods were proper.
    (2) In the case of violations of prohibited acts, you may question 
only our decision on whether conditions or circumstances outside your 
control caused your refusal to comply with the requirements of this 
chapter.
    (e) If we determine you have raised a genuine, substantial question 
of fact or law under paragraphs (d)(1) and (d)(2) of this section, we 
will grant your request for a hearing. We will tell the public by 
publishing a notice in the Federal Register or by some other 
appropriate means.
    (f) File with our Hearing Clerk an original and two copies of all 
documents or papers you must (or may) file. Your filing is timely if 
you deliver or postmark items within the time this section and any 
other regulations allow. We will give you an address for filing 
materials with the Hearing Clerk.
    (g) Present testimony in writing as much as possible. We will give 
everyone copies of written testimony as soon as we can before the 
hearing starts. We will provide a certificate of service for each 
document or paper filed with the Hearing Clerk. If you need to give 
something to the Designated Officer, send it by registered mail (see 
Sec. 1068.25).
    (h) In computing any period of time for this section, do not 
include the day of the act or event. Include Saturdays, Sundays, and 
federal legal holidays, but when the period expires on one of these 
days, extend it to include the next business day. If you must or may do 
something within a prescribed period, compute this period from the time 
we notify you, unless we notify you by mail. For notices by mail, add 
three days to the prescribed period.
    (i) The Administrator or Presiding Officers may consolidate two or 
more proceedings held under this section to speed or simplify resolving 
one or more issues. You may still raise issues that you could have 
raised if we did not consolidate proceedings.
    (j) As much as possible, we will schedule public hearings to start 
within 14 days after we receive a request for a hearing.

Sec. 1068.610  What are the procedures for a public hearing?

    (a) Presiding Officers. Presiding Officers must hold fair and 
impartial hearings under the Administrative Procedure Act (5 U.S.C. 
554, 556, and 557); dispose of the proceedings as soon as possible; and 
maintain order. They have power consistent with the Administrative 
Procedure Act, including the power to do the following:
    (1) Administer oaths and affirmations.
    (2) Rule on offers of proof and exclude irrelevant or repetitious 
material.
    (3) Regulate the course of the hearing and the conduct of the 
parties and their counsel.
    (4) Hold conferences.
    (5) Consider and rule on all procedural and other motions in the 
hearing.
    (6) Require submission of direct written testimony with or without 
affidavit whenever, in their opinion, oral testimony is not necessary 
for full and true disclosure of the facts.
    (7) Enforce agreements and orders requiring access as authorized by 
law.
    (8) Require the filing of briefs on any matter on which they must 
rule.
    (9) Require any party or witness to state a position on any issue 
during the hearing.
    (10) Depose witnesses or require depositions.
    (11) Resolve or recommend resolution for disputed issues on the 
hearing's record.
    (12) Issue protective orders, as described in paragraph (g) of this 
section, based on good cause.
    (b) Accelerated decision or dismissal. Presiding Officers may 
accelerate decisions on all or part of the proceeding, without further 
hearing or with limited additional evidence (such as affidavits they 
may require). They may also dismiss any party with prejudice.
    (1) Presiding Officers may decide in favor of EPA or you (as 
manufacturer), based on any party's motion or their own judgment, for 
any of the following reasons:
    (i) Failure to state a claim on which relief can be granted or 
stating

[[Page 51270]]

something that contradicts a previous statement.
    (ii) The lack of any genuine, material issue, so a party is 
entitled to judgment as a matter of law.
    (iii) Failure to obey a procedural order of the Presiding Officer.
    (iv) Other just reasons.
    (2) A Presiding Officer's accelerated decision on all the issues 
and claims in the proceeding is equal to the decision described in 
paragraph (l) of this section.
    (3) For accelerated decisions on less than all issues or claims in 
the proceeding, the Presiding Officers must determine without 
substantial controversy which material facts exist and which are in 
good faith controverted. Then, they issue an order specifying the facts 
that are without substantial controversy, as well as the issues and 
claims on which the hearing will continue.
    (c) Amicus curiae (friend of the court). Participants in the 
hearing may move that the Presiding Officer allow a brief from a friend 
of the court--someone who is not a participant. Anyone who asks for an 
amicus brief must identify his or her interest and state why the brief 
is desirable. The Presiding Officer may then accept briefs from someone 
who is not a party to the proceeding.
    (d) Conferences. Presiding Officers may hold conferences before 
ordering any hearing. They direct the Hearing Clerk to tell 
participants the time and location of conferences. At the Presiding 
Officer's discretion, other people also may attend. They summarize in 
writing the results of conferences, including all stipulations not 
transcribed, and summaries part of the record. At a conference, 
Presiding Officers may do any of the following:
    (1) Get stipulations and admissions, receive requests, order 
depositions to be taken, identify disputed issues of fact and law, and 
require or allow any witness or party to submit written testimony.
    (2) Set a hearing schedule for oral and written statements, 
submission of written direct testimony, oral direct examination and 
cross-examination of a witness, or oral argument as they consider 
necessary.
    (3) Identify matters for official notice.
    (4) Limit the number of expert and other witnesses.
    (5) Establish the procedures for the hearing.
    (6) Take any other action that may speed the hearing or help 
resolve the issue.
    (e) Primary discovery. At a prehearing conference or at some other 
time a Presiding Officer sets before the hearing, all parties must make 
available to the other parties the names of the expert and other 
witnesses they expect to call, a brief summary of their expected 
testimony, and a list of all documents and exhibits they expect to 
introduce into evidence. After that, a party may move to add exhibits 
or amend expected testimony. If anyone makes a motion showing good 
cause, Presiding Officers may restrict or defer disclosure of the name 
of a witness or a narrative summary of the witness's expected 
testimony. They also may prescribe other measures to protect a witness. 
If restricted or deferred disclosure affects a party, they will allow 
enough time to prepare for presenting that case.
    (f) Other discovery. Presiding Officers may allow further 
discovery. If so, they issue orders for taking the discovery, including 
terms and conditions.
    (1) Any party may move for further discovery, as long as the motion 
includes reasons, the nature of the information discovery will produce, 
and the proposed time and place for it.
    (2) Presiding Officers may approve motions for further discovery if 
they determine it will not unreasonably delay the proceeding, is the 
only way to get the information, and is significant to the case. 
Presiding Officers follow procedures in the Federal Rules of Civil 
Procedure (28 U.S.C.) and its precedents whenever possible. But no one 
can take discovery unless a Presiding Officer orders it or all the 
parties agree to it.
    (3) If someone does not comply with an order issued under this 
paragraph (f), we may infer that the discovery information would harm 
that person.
    (g) Protective orders for private discovery. Presiding Officers may 
enter protective orders to allow a person to testify or disclose 
information in private, rather than in open hearing.
    (1) For this to occur, a party or the person giving discovery 
information must move for a protective order by showing that some of 
the discovery information would reveal methods or processes entitled to 
protection as trade secrets. This information may not include emission 
data. Any party wanting to use private documents or testimony to 
present a case must so move to the Presiding Officer with supporting 
justification.
    (2) Presiding Officers may permit anyone seeking a protective order 
to disclose information in private. They will record the private 
proceeding . If they enter a protective order following a private 
session, they will seal and preserve the record and make it available 
to EPA or the court if anyone appeals. The Presiding Officer may limit 
attendance at any private proceeding to himself or herself, EPA, and 
the person or party seeking the protective order.
    (3) If Presiding Officers grant a motion for a protective order, 
they enter an order that governs treatment of the information to 
protect the parties' rights and prevent unnecessary disclosure. 
Procedures also cover presentation of the information and oral 
testimony and related cross-examination in executive session. The 
protective order must also state that the material will be filed 
separately from other evidence and exhibits in the hearing.
    (4) Disclosing this information is limited to parties to the 
hearing, their counsel and relevant technical consultants, and 
authorized representatives of the United States concerned with carrying 
out the Act. Disclosure by government employees must follow 18 U.S.C. 
1905. For all others, disclosure may be limited to counsel if the 
parties do not have to know the information. Parties or their counsel 
must sign a sworn statement that they will not disclose information to 
persons not entitled to receive it under the protective order's terms.
    (5) In the submittal of proposed findings, briefs, or other papers, 
counsel for all parties must try in good faith not to disclose the 
specific details of private documents and testimony. But they may refer 
to the documents or testimony and speak generally about their contents 
If lawyers consider specific details necessary to their presentations, 
they will place the details in separate proposed findings, briefs, or 
other paper marked ``confidential.'' These confidential papers will 
become part of the private record.
    (h) Motions. All motions, except those made orally during the 
hearing, must be in writing. Parties must state the grounds for the 
motion, describe the relief or order sought, file the motion with the 
Hearing Clerk, and serve it on all parties.
    (1) Within the time fixed by the Environmental Appeals Board or 
Presiding Officers, as appropriate, any party may serve and file an 
answer to the motion. The Environmental Appeals Board or Presiding 
Officers may then require the person who made the motion to file reply 
papers within a specified time.
    (2) Presiding Officers rule on all motions filed or made before 
they file their decisions (or accelerated decisions). The Environmental 
Appeals Board rules on all motions filed before Presiding Officers are 
appointed and on all motions filed after Presiding Officers issue 
decisions. Presiding Officers or the Environmental Appeals Board 
approve

[[Page 51271]]

oral arguing of motions only when necessary.
    (i) Evidence. Evidence consists of official transcripts and 
exhibits, together with all papers and requests filed in the 
proceeding. Presiding Officers will separate and exclude immaterial or 
irrelevant parts of an admissible document whenever possible. They will 
also separate documents (or parts of documents) subject to a protective 
order under paragraph (g) of this section. They may allow evidence at 
the hearing even though it is inadmissible under the rules of evidence 
for judicial proceedings. The weight of evidence depends on its 
reliability and how well it proves a case. Presiding Officers allow 
parties to examine and cross-examine witnesses as much as necessary for 
a full disclosure of the facts. Their rulings on admissibility of 
evidence, propriety of examination and cross-examination, and other 
procedural matters will appear in the record. We automatically assume 
parties have taken exception to an adverse ruling.
    (j) The record. The record consists of official transcripts and 
exhibits, together with all paper and requests filed in the proceeding. 
Stenographers will report and transcribe hearings; the original 
transcripts are part of the record and are the sole official 
transcript. We will file copies of the record with the Hearing Clerk 
and make them available during our business hours for public 
inspection. We may charge a reasonable fee for the service, but may 
deny a request to see information only based on paragraph (g) of this 
section.
    (k) Proposed findings and conclusions. Within four days after the 
proceedings are closed to new evidence, any party may submit for the 
Presiding Officer's consideration proposed findings of fact, 
conclusions of law, or a proposed order, with supporting reasons and 
briefs. The Presiding Officer may allow a longer time for these 
proposals. Parties must put these proposals in writing, serve them on 
all parties, and make sure they contain clear references to the record 
and other authorities. The record shows the Presiding Officer's ruling 
on the proposed findings and conclusions, except when the disposal 
order for the proceeding otherwise informs the parties of these 
actions.
    (l) Presiding Officer's decisions. Presiding Officers issue and 
file decisions with the Hearing Clerk within fourteen days after the 
period for filing proposed findings (see paragraph (k) of this 
section). For hearings that challenge an initial suspension of a 
certificate of conformity, decisions are due within seven days after 
the period for filing proposed findings. The Environmental Appeals 
Board may extend the deadline for these decisions.
    (1) Decisions must state findings and conclusions on all the 
material issues of fact or law in the record, with supporting reasons 
or basis, and an appropriate rule or order. Evidence and consideration 
of the whole record must support the decision.
    (2) Decisions by Presiding Officers become the Environmental 
Appeals Board's decisions at one of the following times, unless the 
Board acts to review or stay the effective date of a decision during 
these periods:
    (i) Ten days after the deadlines to appeal, as described in 
Sec. 1068.615(a) or (b), if no one files a notice of intent to appeal.
    (ii) Five days after the deadline to perfect an appeal, as 
described in Sec. 1068.615(a) or (b), if someone files a notice of 
intent to appeal but does not perfect the appeal.
    (3) At any time before Presiding Officers issue decisions, they may 
reopen proceedings to receive further evidence.
    (4) Except for correcting clerical errors, the Presiding Officers' 
jurisdiction ends when they issue their decisions.

Sec. 1068.615  How do I appeal a hearing decision?

    (a) Appeal from the decisions of Presiding Officers. Any party to a 
proceeding may appeal these decisions to the Environmental Appeals 
Board. In all cases except our initial suspension of a certificate of 
conformity, you must file your notice of intent to appeal within ten 
days after the Presiding Officer issues a decision. You must perfect 
your appeal with an appeal brief within twenty days of the decision. 
Any other party may then file a brief on your appeal within fifteen 
days of the date you file your brief. All briefs must be 40 pages or 
less, unless the Environmental Appeals Board approves otherwise. The 
Board also may allow oral arguments. Your brief must contain the 
following items in this order:
    (1) A subject index of the matter in the brief, with page 
references, plus a table of cases (alphabetically arranged), textbooks, 
statutes, and other material cited, with page references.
    (2) Specific issues you intend to urge (but see regulations in this 
chapter defining emission standards for the engines in question, which 
may limit the range of issues you consider).
    (3) Your argument presenting the points of fact and law supporting 
the position you have taken on each issue, with page references to the 
record and legal or other material you are relying on.
    (4) A proposed order for the Environmental Appeals Board's 
consideration, if it is different from the order in the Presiding 
Officer's decision.
    (b) Appeal of decisions on a suspended certificate of conformity. 
In this case, you may appeal the Presiding Officer's decision to the 
Environmental Appeals Board by filing a notice of appeal within ten 
days of the decision. Make your notice of appeal a brief that meets the 
requirements in paragraph (a) of this section. Within ten days after 
you file a notice of appeal under this paragraph, any other party may 
file a brief on that appeal. All briefs must be 15 pages or less unless 
the Environmental Appeals Board approves otherwise.
    (c) Review of the Presiding Officer's decision in the absence of 
appeal. The hearing Clerk tells the Environmental Appeals Board if no 
one has filed a notice of intent to appeal the Presiding Officer's 
decision by the deadline, or has filed notice but not perfected it. The 
Environmental Appeals Board may then review the decision on its own 
motion, within the time limits in Sec. 1068.610(l). The Board must tell 
all parties that they intend to review the decision, describe the scope 
of their review, and allow for filing briefs.
    (d) Decision of appeal or review by the Environmental Appeals 
Board. The Board considers the record as needed to resolve issues under 
appeal or review. They also may use all the powers they could have used 
if they had presided at the hearing. They adopt, modify, or set aside 
the Presiding Officer's findings, conclusions, and order and state the 
reasons or basis for their action in the decision. If the Board 
determines they need more information or the parties' views on the rule 
or order they are issuing, they may wait until they receive them or 
send the case back to the Presiding Officer. Any decision under this 
paragraph (d) that disposes of a case is the Board's final decision.
    (e) Reconsideration of the Environmental Appeals Board's decision. 
Within 20 days of the Board's decision, you may file a petition with 
the Board to reconsider their decision.
    (1) Your petition must describe the relief you want and the grounds 
supporting it. Limit your petition to new questions raised by the 
decision or final order and only those you did not have the chance to 
argue before the Presiding Officer or the Board. See the regulations in 
this chapter defining emission standards for the engines in question, 
which may further limit the questions the Board will review.

[[Page 51272]]

    (2) Anyone wanting to oppose this petition may file a response 
within ten days after you file it.
    (3) Your petition for reconsideration does not stay the effective 
date of the decision or order. It also does not start any statutory 
time period affecting the decision or order, unless the Environmental 
Appeals Board orders that it does.

Sec. 1068.620  How does a hearing conclude?

    (a) Conclusion of hearing. (1) The hearing ends after all periods 
allowed for appeal and review if no one appeals the Presiding Officer's 
decision and the Environmental Appeals Board does not move to review 
the decision by the specified deadlines.
    (2) The hearing ends when the Environmental Appeals Board issues a 
final decision if someone appeals or the Board decides to review the 
Presiding Officer's decision.
    (b) Judicial review. If you want to petition for judicial review, 
you must serve the petition on EPA's General Counsel. We will then tell 
you the costs involved. After we receive your payment to cover fees, we 
will forward your petition to the court where the Environmental Appeals 
Board filed its order.

Appendix I to Part 1068--Emission Related Components, Parameters, and 
Specifications

I. Basic Engine Parameters--Reciprocating Engines.
    1. Compression ratio.
    2. Type of air aspiration (natural, Roots blown, supercharged, 
turbocharged).
    3. Valves (intake and exhaust).
    a. Head diameter dimension.
    b. Valve lifter or actuator type and valve lash dimension.
    4. Camshaft timing.
    a. Valve opening-intake exhaust (degrees from TDC or BDC).
    b. Valve closing-intake exhaust (degrees from TDC or BDC).
    c. Valve overlap (degrees).
    5. Ports--two stroke engines (intake and/or exhaust).
    a. Flow area.
    b. Opening timing (degrees from TDC or BDC).
    c. Closing timing (degrees from TDC or BDC).
II. Intake Air System.
    1. Roots blower/supercharger/turbocharger calibration.
    2. Charge air cooling.
    a. Type (air-to-air; air-to-liquid).
    b. Type of liquid cooling (engine coolant, dedicated cooling 
system).
    c. Performance (charge air delivery temperature ( deg.F) at 
rated power and one other power level under ambient conditions of 
80 deg.F and 110 deg.F, and 3 minutes and 15 minutes after selecting 
rated power, and 3 minutes and 5 minutes after selecting other power 
level).
    3. Temperature control system calibration.
    4. Maximum allowable inlet air restriction.
III. Fuel System.
    1. General.
    a. Engine idle speed.
    2. Carburetion.
    a. Air-fuel flow calibration.
    b. Idle mixture.
    c. Transient enrichment system calibration.
    d. Starting enrichment system calibration.
    e. Altitude compensation system calibration.
    f. Hot idle compensation system calibration.
    3. Fuel injection--spark-ignition engines.
    a. Control parameters and calibrations.
    b. Idle mixture.
    c. Fuel shutoff system calibration.
    d. Starting enrichment system calibration.
    e. Transient enrichment system calibration.
    f. Air-fuel flow calibration.
    g. Altitude compensation system calibration.
    h. Operating pressure(s).
    i. Injector timing calibration.
    4. Fuel injection--compression ignition engines.
    a. Control parameters and calibrations.
    b. Transient enrichment system calibration.
    c. Air-fuel flow calibration.
    d. Altitude compensation system calibration.
    e. Operating pressure(s).
    f. Injector timing calibration.
IV. Ignition System--Spark-Ignition Engines.
    1. Control parameters and calibration.
    2. Initial timing setting.
    3. Dwell setting.
    4. Altitude compensation system calibration.
    5. Spark plug voltage.
V. Engine Cooling System.
    1. Thermostat calibration.
VI. Exhaust System.
    1. Maximum allowable back pressure.
VII. Exhaust Emission Control System.
    1. Air injection system.
    a. Control parameters and calibrations.
    b. Pump flow rate.
    2. EGR system.
    a. Control parameters and calibrations.
    b. EGR valve flow calibration.
    3. Catalytic converter system.
    a. Active surface area.
    b. Volume of catalyst.
    c. Conversion efficiency.
    4. Backpressure.
VIII. Crankcase Emission Control System.
    1. Control parameters and calibrations.
    2. Valve calibrations.
IX. Auxiliary Emission Control Devices (AECD).
    1. Control parameters and calibrations.
    2. Component calibration(s).
X. Evaporative Emission Control System.
    1. Control parameters and calibrations.
    2. Fuel tank.
    a. Volume.
    b. Pressure and vacuum relief settings.

[FR Doc. 01-23591 Filed 10-4-01; 8:45 am]
BILLING CODE 6560-50-P