From: Moulis, Charles

Sent: Thursday, May 02, 2013 4:14 PM

To: Jed Mandel

Cc: Spears, Matthew; Steele, Lauren; Stout, Alan Subject: Staff Draft of §1039.665
Attachments: 1039.665

- DELIBERATIVE STAFF DRAFT

- REDLINE RLATIVE TO NPRM.docx;

1039.665

- DELIBERATIVE STAFF DRAFT

- REDLINE RLATIVE TO LAST
DRAFT.docx

Jed,

Attached are two redline versions of the latest staff draft of §1039.665

– one relative to the NPRM and one relative to the last draft yo u saw. You may share these with EMA members, but please be clear that these are merely staff

- level drafts.The pot ential revisions in this document are based on initial thoughts that have been developed by ASD staff only,

and these potential revisions have not been reviewed by EPA’s Office of General Counsel or any other EPA office

. The intended use of this document is to facilitate an efficient and informal discussion of the issues with EMA. This document is being provided only as a courtesy and at the request of EMA. This document is not intended to reflect anything more than some initial staff level idea s that could potentially be considered in the process of developing a final rule that addresses comments EPA received during and after the comment period of the Emergency Vehicle
NPRM.

§1039.665 Special provisions for use of engines in emergency situatio ns.

This section specifies provisions that allow for AECDs that are necessary to ensure proper functioning of engines and equipment regulated under this part in emergency situations. For purposes of this section, an emergency situation is one in which the functioning (or malfunctioning) of emission controls poses a significant risk to human life . For example, a situation in which a feature of emission controls inhibits the performance of an engine being used to rescue a person from a life

- threatening s ituation would be an emergency situation. AECDs approved under this section are not defeat devices , and their proper use in a qualified emergency is not considered a prohibited act under Section 202 of the Clean Air Act

. (a) Manufacturers may ask for appr oval under this section at any time; however, we encourage manufacturers to obtain preliminary approval before submitting an application for certification. We may allow manufacturers to apply an approved emergency AECD to engines and equipment that have a lready been placed into service. (b) We will approve an AECD where we determine the following criteria are met: (1) Except as allowed under paragraph (b)(2) of this section, activation Activation of the AECD cannot occur without the specific permission of t he certificate holder

, and must require the input of a temporary
code , reconfiguration of the engine’s electronic control module by a qualified service technician, or equivalent security feature that is unique to each engine.

. (2) Manufacturers may design and produce their engines and provide the appropriate instructions to allow operators to activate the emergency AECD one time without any further input or permission from the manufacturer, for a given engine. Unless we otherwise allow, m anufacturers Manuf acturers taking this approach must display the information identified in paragraph (c)( 2 ) 1) of this section on the engine or piece of equipment where it is clearly visible to the operator when the operator is in a position to activate
the AECD. The purpose of displaying this information is to discourage improper activation of the AECD. (3) The emergency AECD must become inactive within [ TBD ( greater than engine hours ) ] ] clock hours
of time after its activation; however, if the engine does not hav e the capability to track elapsed time clock
hours , manufacturers may alternatively design the engine to disable emergency AECDs within [ TBD 24 ] hours of cumulative engine run running time after the AECD is initially activated

. (4 (2) The AECD must becom e inactive within 24 hours of becoming active. (3 ) The AECD may deactivate emission controls as necessary to address the emergency situation. For purposes of this paragraph (b)( 4 3 ), inducement strategies related to operating SCR

- equipped engines
without reductant are considered to be emission controls. ( 5) The engine must include a n operator

- activated a switch or other device or element of design to allow the operator to manually disable the AECD once the emergency has clearly passed. The controls for thi s feature may include a “confirm

- delete” function

, as needed

, to prevent unintentionally disabling the
AECD

. (6) The engine must record in non

- volatile electronic memory the total number of activations of the emergency AECD for that engine. (6 4 ) The AECD’s design must be is consistent with good engineering judgment. (c) Manufacturers producing engines equipped with an emergency AECD must communicate at least the following information in writing to the owner: (1) Instructions for activating, disabling, report ing AECD use, and requesting resetting of the AECD. Comment [SM1]: EMA is seeking clarification, perha ps in the Preamble, on the inclusion of indirect and delayed risks (e.g. banking system risks)

Comment [SM2]: S pecify a more concise subset information to display.

Comment [SM3]: D iscuss further how a new category of unattended and continuously operated equipment could be specified to have a different
number of hours.

Comment [SM4]: D iscuss further how a new category of unattended and continuously operated equipment could be specified to have a different
number of hours.

Comment [SM5]: D iscuss adding a paragraph to allow EPA to delcare longer AECD durations in cases of certain (national?) declared emergencies.(2) Warning that activating the emergency AECD for something other than a qualified emergency

situation, failing to disable the emergency AECD after the emergency has passed, or failing to notify and

pr ovide the report to the manufacturer required under paragraph (d)(2) of this section within 30 days following initial activation of the AECD, are prohibited acts under federal regulations. The warning must also identify the maximum civil penalty for s uch violations, according to Section 205 of the Clean
Air Act. (3) Notification that the manufacturer will send the information from the operator’s report required by paragraph (d) of this section to EPA and that federal regulation separately prohibits sub mitting false
information. (d) The certificate holder must keep records to document requests for resets and use of emergency
AECDs under this section. (1) The operator (or other person responsible for the engine/equipment) may request resetting of the AECD at any time. The manufacturer may reset the AECD only after the operator provides the operator’s name, mailing address, and a telephone number to contact the operator sufficient contact information for
the manufacturer to collect the information required in paragraph (d)(2) of this section. (2) The operator (or other person responsible for the engine/equipment) must send a written notification and report request to the certificate holder prior to use, or a written confirma tion of a verbal request
within 30 days after activating an emergency AECD. (i) This report must include all the following: (A) A of making the request, including a description of the emergency situation and the location of the equipment during the e mergency , including the , the reason for the use of the AECD, engine serial number (or equivalent), a description of the extent and duration of engine operation while the AECD was activated and how the AECD was disabled after the emergency passed, and a signature from an official acknowledging the conditions of the emergency situation (such as a county sheriff, fire marshal, or hospital administrator ). (B) T he reason for the use of the AECD during the emergency situation . For example, lack of DEF or t he
failure of an emission s sensor during a time when the equipment was needed to respond to the emergency

. (C) The engine serial number (or equivalent)

. (D) A description of the extent ), and duration of engine operation while the AECD was activated and if
the AECD was manually disabled after the emergency passed, (E) C ontact name, mailing address, and telephone number information for the responsible company or entity. (ii) Such notifications and reports requests are deemed to be submissions to EPA. Where the written notification and report confirmation is not submitted by the operator, we may will deem operation of the engine with an activated emergency AECD to be a violation of 40 CFR 1068.101(b)(1). ( 3 2 ) If the operator fails to does not submit the applicable notification and report confirmation within 30 days after activating an emergency AECD , the certificate holder , to the extent it has been made aware of
the activation and/or resetting of the emergency AECD, must send written notification to the operator that failure to submit written confirmation may subject the operator to penalties under 40 CFR 1068.101. ( 4) The certificate holder may take appropriate additional steps to induce operators to report AECD

a ctivation [ and to induce operators to request resetting of the AECD to be ready for a repeat activation of the emergency AECD ] . For example, such an inducement could include a persistent visible and/or
audible alarm. ( 5 4 3 ) Within 60 days of the end of eac h calendar year in which the certificate holder receives notification
of any authorizes use of an emergency AECD, or receives a request for resetting an emergency AECD, by any engine or piece of equipment covered by its certificate the AECD , the certificate holder must send a report to the Designated Compliance Officer to summarize such use or request , including a description of the emergency situation precipitating each use, and copies of the written notification and report confirmation provided by operators (or statements that an the operator did not provide notification or report, to the extent known by the certificate holder). A certificate holder may request an extension to this deadline based on an emergency situation occurring within [ ] days of the end of a given calendar Comment [SM6]: D iscuss further the appropriate number of days for this requirement.

Comment [SM7]: Discuss further the appropriate number of days for this requirement.

Comment [SM8]: D iscuss further the appropriate number of days for this requirement.year. confirmation). We may require more frequent reporting if we find that the certificate holder is does

not successful in collect ing collect or attempt to collect written confirmation for each situation. ( e d ) We may set other reasona ble conditions to ensure that this provision is not used to circumvent the emission standards of this part.The pot ential revisions in this document are based on initial thoughts that have been developed by ASD staff only,

and these potential revisions have not been reviewed by EPA’s Office of General Counsel or any other EPA office

. The intended use of this document is to facilitate an efficient and informal discussion of the issues with EMA. This document is being provided only as a courtesy and at the request of EMA. This document is not intended to reflect anything more than some initial staff level idea s that could potentially be considered in the process of developing a final rule that addresses comments EPA received during and after the comment period of the Emergency Vehicle
NPRM.

§1039.665 Special provisions for use of engines in emergency situation s.

This section specifies provisions that allow for AECDs that are necessary to ensure proper functioning of engines and equipment regulated under this part in emergency situations. For purposes of this section, an emergency situation is one in which the functioning (or malfunctioning) of emission controls poses a significant risk to human life . For example, a situation in which a feature of emission controls inhibits the performance of an engine being used to rescue a person from a life

- threatening si tuation would be an emergency situation. AECDs approved under this section are not defeat devices, and their proper use in a qualified emergency is not considered a prohibited act under Section 202 of the Clean Air Act. (a) Manufacturers may ask for appro val under this section at any time; however, we encourage manufacturers to obtain preliminary approval before submitting an application for certification. We may allow manufacturers to apply an approved emergency AECD to engines and equipment that have al ready been placed into service. (b) We will approve an AECD where we determine the following criteria are met: (1) Except as allowed under paragraph (b)(2) of this section, activation of the AECD cannot occur without the specific permission of the certific ate holder and must require the input of a temporary code, reconfiguration of the engine’s electronic control module by a qualified service technician, or equivalent security feature that is unique to each engine. (2) Manufacturers may design and produce their engines and provide the appropriate instructions to allow operators to activate the emergency AECD one time without any further input or permission from the manufacturer, for a given engine. Unless we otherwise allow, m anufacturers Manufacturers taki ng this approach must display the information identified in paragraph (c)( 2 ) 1) of this section on the engine or piece of equipment where it is clearly visible to the operator when the operator is in a position to activate the AECD. The purpose of disp laying this information is to discourage improper activation of the AECD. (3) The emergency AECD must become inactive within [ TBD ( greater than engine hours ) ] ] clock hours
of time after its activation; however, if the engine does not have the capability to track elapsed time clock
hours , manufacturers may alternatively design the engine to disable emergency AECDs within [ TBD 24 ] hours of cumulative engine run running time after the AECD is in itially activated

. (4) The AECD may deactivate emission controls as necessary to address the emergency situation. For purposes of this paragraph (b)(4), inducement strategies related to operating SCR

- equipped engines
without reductant are considered to be emission controls. (5) The engine must include a n operator

- activated a switch or other device or element of design to allow the operator to manually disable the AECD once the emergency has clearly passed. The controls for this
feature may include a “co nfirm

- delete” function

, as needed

, to prevent unintentionally disabling the
AECD

. (6) The engine must record in non

- volatile electronic memory the total number of activations of the emergency AECD for that engine. (6) The AECD’s design must be consistent w ith good engineering judgment. (c) Manufacturers producing engines equipped with an emergency AECD must communicate at least the following information in writing to the owner: (1) Instructions for activating, disabling, reporting AECD use, and requesting r esetting of the AECD. Comment [SM9]: EMA is seeking clarification, perhaps in the Preamble, on the inclusion of indirect and delayed risks (e.g. banking system risks)

Comment [SM10]: S pecify a more concise
subset information to display.

Comment [SM11]: D iscuss further how a new
categor y of unattended and continuously operated equipment could be specified to have a different
number of hours.

Comment [SM12]: D iscuss further how a new category of unattended and continuously operated equipment could be specified to have a different
number of hours.

Comment [SM13]: D iscu ss adding a paragraph to allow EPA to delcare longer AECD durations in cases of certain (national?) declared emergencies.(2) Warning that activating the emergency AECD for something other than a qualified emergency

situation, failing to disable the emergency AECD after the emergency has passed, or failing to notify and provide the report to the manufa cturer required under paragraph (d)(2) of this section within 30 days following initial activation of the AECD, are prohibited acts under federal regulations. The warning must also identify the maximum civil penalty for such violations, according to S ection 205 of the Clean
Air Act. (3) Notification that the manufacturer will send the information from the operator’s report required by paragraph (d) of this section to EPA and that federal regulation separately prohibits submitting false
information. ( d) The certificate holder must keep records to document requests for resets and use of emergency
AECDs under this section. (1) The operator (or other person responsible for the engine/equipment) may request resetting of the AECD at any time. The manufa cturer may reset the AECD only after the operator provides the operator’s name, mailing address, and a telephone number to contact the operator sufficient contact information for the manufacturer to collect the information required in paragraph (d)(2) of this section. (2) The operator (or other person responsible for the engine/equipment) must send a written notification and report to the certificate holder within 30 days after activating an emergency AECD. (i) This report must include all the following: (A) A a description of the emergency situation and the location of the equipment during the emergency

, including the reason for the use of the AECD, engine serial n umber (or equivalent), a description of the extent and duration of engine operation while the AECD was activated and how the AECD was disabled after the emergency passed, a signature from an official acknowledging the conditions of the emergency
situation (such as a county sheriff, fire marshal, or hospital administrator ). (B) T he reason for the use of the AECD during the emergency situation . For example, lack of DEF or the
failure of an emission s sensor during a time when the equipment was needed to respo nd to the emergency

. (C) The engine serial number (or equivalent)

. (D) A description of the extent ), and duration of engine operation while the AECD was activated and if
the AECD was manually disabled after the emergency passed, (E) C ontact name, mailing address, and telephone number information for the responsible company or entity. (ii) Such notifications and reports are deemed to be submissions to EPA. Where the written notification and report is not submitted by the operator, we may deem operation o f the engine with an activated emergency AECD to be a violation of 40 CFR 1068.101(b)(1). (3) If the operator fails to does not submit the applicable notification and report within 30 days after activating an emergency AECD, the certificate holder, to th e extent it has been made aware of the
activation and/or resetting of the emergency AECD, must send written notification to the operator that failure to submit written confirmation may subject the operator to penalties under 40 CFR 1068.101. (4) The cert ificate holder may take appropriate additional steps to induce operators to report AECD
activation [ and to induce operators to request resetting of the AECD to be ready for a repeat activation of the emergency AECD ] . For example, such an inducement could include a persistent visible and/or
audible alarm. ( 5 4 ) Within 60 days of the end of each calendar year in which the certificate holder receives notification
of any use of an emergency AECD, or receives a request for resetting an emergency AECD, by any

eng ine or piece of equipment covered by its certificate, the certificate holder must send a report to the Designated Compliance Officer to summarize such use or request, including a description of the emergency situation precipitating each use, and copies of the written notification and report provided by operators (or statements that an operator did not provide notification or report, to the extent known by the certificate holder). A certificate holder may request an extension to this deadline based on an em ergency situation occurring within [ ] days of the end of a given calendar year. We may require more frequent reporting if we find that the certificate holder is does not successful in collect ing collect or attempt to
collect written confirmation for each situation. Comment [SM14]: D iscuss further the appropriate number of days for this requirement.

Comment [SM15]: Discuss further the appropriate number of days for this requirement.

Comment [SM16]: D iscuss further the appropriate number of days for this requirement.(e) We may set other reasonable conditions to ensure that this provision is not used to circumvent the

emission standards of this part.From: Moulis, Charles

Sent: Friday, May 10, 2013 11:22 AM

To: Spears, Matthew; Jed R. Mandel

Cc: Steele, Lauren; Stout, Alan Subject: RE: DELIBERATIVE potential revisions for 1039_665 3rd draft
Attachments: DELIBERATIVE potential revisions for 1039_665 3rd draft clean.docx

Jed,

Here is a slightly revised version of Matt’s clean draft. Use this one for your review.

Chuck

From: Spears, Matthew
Sent: Thursday, May 09, 2013 7:31 PM
To: Jed R. Mandel
Cc: Steele, Lauren; Moulis, C harles; Stout, Alan Subject: DELIBERATIVE potiential revisions for 1039_665 3rd draft

Hi Jed,

Lauren, Chuck, and Alan and I made a number of revisions to the DRAFT 1039.665 text based on our recent meeting, and then I made a significant number of structu ral changes to reorganize the section
and rewrite its introduction. Because of this restructuring, I’m not sure if a redline compare would be useful, so I am attaching three versions here: the original NPRM version, the version we used in our meeting, and this latest (3 rd ) revision. If others would like to perform a Word document compare to view redline versions between these documents, they are free to do so.

I should also note that I have not gone back to the ASD team for their comments after my

restru cturing/rewriting of the section. They are receiving it here in the same email at the same time you

are. Therefore, it is quite likely that we will have additional revisions to this latest version. However, I do believe that this version at least captur es our discussions and attempts to put all of our ideas into a single coherent section.

If everyone, including the ASD team members, are ok moving forward with this restructured version, please let all of us know so that EMA knows that it would be constru ctive to provide their review and
comments to this version. Otherwise, please let us all know if anyone believes we should not use this 3 rd
revision, but rather keep closer to the original structure and try to only minimally edit the draft we used

at our meeting. Thanks.

Regards,

Matthew W. Spears Center Director, Heavy

- Duty Diesel Standards Assessment and Standards Division (ASD) U.S. EPA, Office of Transportation and Air Quality (OTAQ) 2000 Traverwood Dr., Ann Arbor, MI 48105The pot ential revisions in this document are based on initial thoughts that have been developed by ASD staff only,

and these potential revisions have not been reviewed by EPA’s Office of General Counsel or any other EPA office

. The intended use of this document is to facilitate an informal discussion of the issues with EMA.

§1039.665 Temporarily disabling emissions controls during qualified emergency situations

. This section specifies provisions that allow for the temporary disabling of emissions contr ols during qualified emergency situations. For purposes of this section, a qualified emergency situation is one in which the condition of an engine’s emission controls poses a direct or indirect significant risk to human life . An example of a direct risk would be a n emission control s condition that inhibits the performance of an engine being used to rescue a person from a life

- threatening situation. An example of an indirect risk would be an emission controls condition that inhibits the performance of an engine being used to provide electrical power to a data center that routes “911” emergency response telecommunications. (a) Scope

. To facilitate the temporary disabling of emissions controls during a qualified emergency
situation , manufacturers may apply for the approval of Auxiliary Emissions Control Devices (AECDs)
under this section

. Once activated, an AECD approved under this section may disable any emission controls as necessary to address a qualified emergency situation. For the purposes of this sec tion, the automatic limiting of engine performance to induce an operator to perform emissions

- related
maintenance

— such as refilling the DEF tank of an SCR emissions control system

— is considered to be
emission controls. AECDs approved under this section ar e not defeat devices, and their proper use during a qualified emergency situation is not considered a prohibited act under Section 202 of the Clean Air Act. Manufacturers may apply for AECD approval at any time; however, we encourage manufacturers to
obta in preliminary approval before submitting an application for certification. We may allow manufacturers to apply an approved AECD to engines and equipment that have already been placed into
service. (b) AECD Approval criteria

. We will approve an AECD where we determine that the following criteria
have been met: (1) The AECD’s design must be consistent with good engineering judgment. (2) Manufacturers must discourage improper activation of the AECD by displaying information where it is clearly visible to the equipment operator when the operator is in a position to activate the AECD. Unless we approve alternate language, state the following: “EMERGEN CY USE ONLY, SEE OWNERS MANUAL, PENALTIES APPLY FOR MISUSE.” ( 3 ) Manufacturers may design and produce their e ngines with the AECD initially armed to allow operators to activate the AECD one

- time per engine without any further input or permission from the
manufacturer. The AECD may be subsequently reset as specified in paragraph (b)( 8 ) of this section. ( 4 ) Except as allowed by paragraph (b)(3) of this section, a ctivation of the AECD must require either the input of a temporary code, reconfiguration of the engine’s electronic control module by a qualified service technician, or an equivalent security feature that i s unique to each engine. ( 5 ) The engine controls must be configured to record in non

- volatile electronic memory the total
number of activations of the AECD for that engine. ( 6 ) The engine controls mus t include an operator

- activated switch or other device or element of design to allow the operator to manually deactivate the AECD once a qualified emergency situation has clearly ended

. This manual control may include a “confirm

- delete” function, as needed, to prevent unintentionally deactivating the AECD. This control may allow for manual reactivation of
the AECD provided that the AECD’s automatic deactivation limits in paragraph (b)( 7 ) of this section
have not yet been reached , but such reactivation by operators would be allowed only under emergency condit ions . This manual deactivation control must not deactivate operator inducements required by paragraph (b)( 9 ) of this section. ( 7 ) The AECD must automatically deactivate after reaching the limits specified in this paragraph (b)( 7 ). The AECD may be subsequently reset as specified in paragraph (b)( 8 ) of this section. For emission controls that involve a sequence of increasingly more severe engine performance limits toinduce operators to perform emissions

- related maintenance , the emission controls ma y be re set to the

initial point of that sequence when the AECD is deactivated. (i) The provisions of this paragraph (b)(7)(i) apply for engine s used only to power an electrical power generator or a flood control pump, where the generator or pump is the sol e source of electrical or shaft power when the normal source of power is interrupted during a qualified emergency situation . For such engines, the emergency AECD must automatically deactivate within a time period of 30 days after the AECD was initially ac tivated, independent of the amount of time the engine was operated . The provisions of paragraph (b)(7)(ii) of this section do not apply , provided all the following are also true: (A) The engine and equipment are intended t o operate unattended; that is, wi thout human input or observation, and (B) The engine controls have the ability to record elapsed time from the point of AECD activation
to the time of automatic deactivation , without regard to wh ether the engine is operating. (C) The engine is labeled for use only in electrical power generation or flood control pump applications. Unless we approve alternate language, state the following: “THIS ENGINE IS FOR
INSTALLATION IN ELECTRICAL POWER GENERATION OR FLOOD CONTROL PUMP
APPLICATIONS ONLY.” (ii) For all o ther engines, the emergency AECD must automatically deactivate within a cumulative engine run time period of [24

- 120] hours after the AECD was initially activated, and the AECD must automatically deactivate within a time period of [ 72

- 240] hours after its
activation

, independent of the amount of time the engine was operated

. We may waive the [72

- 240] time period limit for the first [1

- 2] model years to which this section applies. (iii) W e may allow reconfiguring the AECD to remain active for longer intervals where we
determine that a particular emergency situation warrants

. ( 8 ) Except as allowed under paragraph (b)( 3 ) of this section, the manufacturer must ensure that resetting of the AECD cannot occur without the specific permission of the manufact urer ; and that resetting the AECD must require either the input of a temporary code, reconfiguration of the engine’s electronic control module by a qualified service technician, or an equivalent security feature that is unique to each engine. ( 9 ) The manu facturer must take appropriate additional steps to induce operators to report AECD activation and request resetting of the AECD. We recommend including one or more persistent
visible and/or audible alarm s that are active from the point when the AECD is ac tivated to the point
when it is reset

. (c) Required Information

. Manufacturers producing engines equipped with an AECD approved under this
section must communicate at least the following information in writing to the operator : (1) Instructions for activating, deactivating, reactivating , reporting AECD use, and requesting resetting of the AECD. (2) Warning that activating the emergency AECD for something other than a qualified emergency situation, failing to disable the emergency AECD after a qualified emergency situation has clearly
ended , or failing to notify and report to the manufacturer as required under paragraph ( e ) of this section, are prohibited acts under federal regulations. The warning must also identify the maximum

c ivil penalty for such violations, according to 40 CFR 1068.101

. (3) Notification that the manufacturer will send the informa tion from the operator’s report under paragraph (e) of this section to EPA and that federal regulation separately prohibits submitti ng false
information. ( d ) Resetting AECDs

. The operator (or other person responsible for the engine/equipment) may request resetting of the AECD at any time. The manufacturer may reset the AECD only after the operator provides by any means the informat ion required in paragraph ( e )( 1 ) of this section. ( e ) Operator Reporting of AECD Use

. The operator (or other person responsible for the engine/equipment) must send a written report to the manufacturer within 60 days after activating an
AECD approved under this section . Th e report must include the following:(1) Contact name, mail and e

- mail addresses, and telephone number for the responsible company or

entity

. ( 2 ) A description of the emergency situation

, the location of the engine during the emergency

, and a signature from an official acknowledging the emergency situation (such as a county sheriff, fire marshal, or hospital administrator)

. ( 3 ) T he reason for the activation of the AECD during the emergency situation . For example, lack of
DEF or the fa ilure of an emission

- related sensor when the engine was needed to respond to an
emergency situation

. ( 4 ) The engine serial number (or equivalent)

. ( 5 ) A description of the extent and duration of the engine operation while the AECD was activ e, including a statement whether or not the AECD was manually deactivated after the emergency
situation had clearly ended

. (f) Operator Failure to R eport

. If the operator fails to submit to the manufacturer the applicable report within 60 days of activating an AECD approved under this section , the manufacturer , to the extent it has
been made aware of the AECD activation, must send written notification to the operator that failure to meet the submission requirements may subject the operator to penalties under 40 CFR 1068.101. (g) Manufacturer Reporting to EPA

. With in 90 days of the end of each calendar year, the manufacturer
must send a n annual report of the use of AECDs approved under this section to the Designated Compliance Officer

. A manufacturer may request an extension if it is impractical to meet this deadline as the result of an emergency situation occurring late in a given calendar year. The annual report must include a d escription of each emergency situation precipitating each AECD activation and copies of the report s submitted by operators (or statements that an operator did not submit a report, to the extent known by the manufacturer ). ( h ) Submissions to EPA

. Notifications and reports submitted to comply with this section are deemed to be
submissions to EPA. ( i ) Recordkeeping

. The manufacturer must keep records to document use of AECDs approved under this
section. ( j ) Anti

- circumvention

. We may set other reasonable conditions to ensure that the provision s in this
section are not used to circumvent the emission standards of this part.

### From: Moulis, Charles

Sent: Thursday, May 30, 2013 4:15 PM

To: Jed R. Mandel Subject: DELIBERATIVE potential revisions for 1039_665 4th draft .docx
Attachments: DELIBERATIVE potential revisions for 1039_665 4th draft .docx

Jed,

As you know, we have made a number of revisions to the draft 1039.665 text based on our meeting earlier this month. I think the attached draft addresses most of EMA’s concerns. The
few issues that remain ar e flagged in the document so that we can continue to consider them as we go through internal EPA review.

Chuck

### DRAFT AND DELIBERATIVE, DO NOT CITE OR QUOTE

The pot ential revisions in this document are based on initial thoughts that have been developed by ASD staff only, and these potential revisions have not been reviewed by EPA’s Office of General Counsel or any other EPA office

. The intended use of this document is to facilitate an informal discussion of the issues with EMA.



### §1039.665 Temporarily disabling emissions controls during qualified emergency situations

. This section specifies provisions that allow for the temporary disabling of emissions contr ols during qualified emergency situations. For purposes of this section, a qualified emergency situation is one in which the condition of an engine’s emission controls poses a direct or indirect significant risk to human life . An example of a direct risk would be a n emission control s condition that inhibits the performance of an engine being used to rescue a person from a life

threatening situation. An example of an indirect risk would be an emission controls condition that inhibits the performance of an engine being used to provide electrical power to a data center that routes “911” emergency response telecommunications. (a) Scope

. To facilitate the temporary disabling of emissions controls during a qualified emergency situation , manufacturers may apply for the approval of Auxiliary Emissions Control Devices (AECDs) under this section

. Once activated, an AECD approved under this section may disable any emission controls as necessary to address a qualified emergency situation. For the purposes of this sec tion, the automatic limiting of engine performance to induce an operator to perform emissions

- related maintenance

— such as refilling the DEF tank of an SCR emissions control system

— is considered to be emission controls. AECDs approved under this section ar e not defeat devices, and their proper use during a qualified emergency situation is not considered a prohibited act under Section 202 of the Clean Air Act. Manufacturers may apply for AECD approval at any time; however, we encourage manufacturers to obta in preliminary approval before submitting an application for certification. We may allow manufacturers to apply an approved AECD to engines and equipment that have already been placed into service. (b) AECD Approval criteria

. We will approve an AECD where we determine that the following
criteria have been met: (1) The AECD’s design must be consistent with good engineering judgment. (2) Manufacturers must discourage improper activation of the AECD by displaying
information where it is clearly visible to the equipment operator when the operator is in a position to activate the AECD. Unless we approve alternate language, state the following:
“EMERGEN CY USE ONLY, SEE OWNERS MANUAL, PENALTIES APPLY FOR
MISUSE.” ( 3 ) Manufacturers may design and produce their e ngines with the AECD initially armed to allow operators to activate the AECD one

- time per engine without any further input or permission from the manufacturer. The AECD may be subsequently reset as specified in paragraph (b)( 8 ) of this section. ( 4 ) Except as allowed by paragraph (b)(3) of this section, a ctivation of the AECD must require either the input of a temporary code, reconfiguration of the engine’s electronic control module by a qualified service technician, or an equivalent security feature that i s unique to each engine. ( 5 ) The engine controls must be configured to record in non

- volatile electronic memory the
total number of activations of the AECD for that engine. ( 6 ) The engine controls mus t include an operator

- activated switch or other device or element
of design to allow the operator to manually deactivate the AECD once a qualified emergency situation has clearly ended

. This manual control may include a “confirm

- delete” function, as

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needed, to prevent unintentionally deactivating the AECD. This control may allow for
manual reactivation of the AECD provided that the AECD’s automatic deactivation limits in paragraph (b)( 7 ) of this section have not yet been reached , but such reactivation by operators would be allowed only under emergency condit ions . This manual deactivation control must
not deactivate operator inducements required by paragraph (b)( 9 ) of this section. ( 7 ) The AECD must automatically deactivate after reaching the limits specified in this paragraph (b)( 7 ). The AECD may be subsequently reset as specified in paragraph (b)( 8 ) of
this section. For emission controls that involve a sequence of increasingly more severe engine performance limits to induce operators to perform emissions

- related maintenance , the
emission controls ma y be re set to the initial point of that sequence when the AECD is
deactivated. (i) The provisions of this paragraph (b)(7)(i) apply for engine s used only to power an electrical power generator or a flood control pump, where the generator or pump is the
sol e source of electrical or shaft power when the normal source of power is interrupted during a qualified emergency situation . For such engines, the emergency AECD must automatically deactivate within a time period of 30 days after the AECD was initially

ac tivated, independent of the amount of time the engine was operated . The provisions of paragraph (b)(7)(ii) of this section do not apply , provided all the following are also true: (A) The engine and equipment are intended t o operate unattended; that is, wi thout human input or observation, and (B) The engine controls have the ability to record elapsed time from the point of AECD
activation to the time of automatic deactivation , without regard to wh ether the engine is operating. (C) The engine is labeled for use only in electrical power generation or flood control pump applications. Unless we approve alternate language, state the following: “THIS
ENGINE IS FOR INSTALLATION IN ELECTRICAL POWER GENERATION OR
FLOOD CONTROL PUMP APPLICATIONS ONLY.” (ii) For al l other engines, the emergency AECD must automatically deactivate within a cumulative engine run time period of [24

- 120] hours after the AECD was initially
activated (excluding any time the AECD was deactivated)

, and the AECD must automatically deactivate within a time period of [ 72

- 240] hours after its activation

, independent of the amount of time the engine was operated

. We may waive the [72

- 240] time period limit for the first [1

- 2] model years to which this section applies. (iii) W e may allow reconfiguring the AECD to remain active for longer intervals where
we determine that a particular emergency situation warrants

. ( 8 ) Except as allowed under paragraph (b)( 3 ) of this section, the manufacturer must ensure that resetting of the AECD cannot oc cur without the specific permission of the manufacturer ; and that resetting the AECD must require either the input of a temporary code, reconfiguration of the engine’s electronic control module by a qualified service technician, or

an equivalent security feature that is unique to each engine. ( 9 ) The manufacturer must take appropriate additional steps to induce operators to report AECD activation and request resetting of the AECD. We recommend including one or more persistent visible and/or audible alarm s that are active from the point when the AECD is
activated to the point when it is reset

. Comment [CM1]: EMA’s preferred text:

(A) The engine and equipment are intended to operate unattended; that is, without in

- person human input or observation, and

Comment [CM2]: EMA’s preferred text:

and the AECD must automatically deactivate within

a cumulative engine run time period of [72

- 240]
hours afte r its activation, independent of the amount
of time the AECD was active

. engine was operated.
W e may waive the [72

- 240] time period limit for the first [1

- 2] model years to which this section applies.

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(c) Required Information

. Manufacturers producing engines equipped with an AECD approved
under this section must communicate at least the following information in wri ting to the operator : (1) Instructions for activating, deactivating, reactivating , reporting AECD use, and requesting resetting of the AECD. (2) Warning that activating the emergency AECD for something other than a qualified emergency situation, failing to disable the emergency AECD after a qualified emergency situation has clearly ended , or failing to notify and report to the manufacturer as required under paragraph ( e ) of this section, are prohibited acts under federal regulations. The warning must also identify the maximum civil penalty for such violations, according to 40
CFR 1068.101

. (3) Notification that the manufacturer will send the informa tion from the operator’s report under paragraph (e) of this section to EPA and that federal regulation separat ely prohibits submitting false information. ( d ) Resetting AECDs

. The operator (or other person responsible for the engine/equipment) may request resetting of the AECD at any time. The manufacturer may reset the AECD only after the operator provides by any means the information required in paragraph ( e )( 1 ) of this section. ( e ) Operator Reporting of AECD Use

. The operator (or other person responsible for the engine/equipment) must send a written report to the manufacturer within 60 days after activating
an AECD approved under this section . Th e report must include the following: (1) Contact name, mail and e

- mail addresses, and telephone number for the responsible company or entity

. ( 2 ) A description of the emergency situation

, the location of the engin e during the

emergency , and a signature from an official acknowledging the emergency situation (such as a county sheriff, fire marshal, or hospital administrator)

. ( 3 ) T he reason for the activation of the AECD during the emergency situation . For example,
lack of DEF or the failure of an emission

- related sensor when the engine was needed to respond to an emergency situation

. ( 4 ) The engine serial number (or equivalent)

. ( 5 ) A description of the extent and duration of the engine operation while the AECD was activ e, including a statement whether or not the AECD was manually deactivated after the

emergency situation had clearly ended

. (f) Operator Failure to R eport

. If the operator fails to submit to the manufacturer the applicable report within 60 days of activating an AECD approved under this section , the manufacturer , to the extent it has been made aware of the AECD activation, must send written notification to the operator that failure to meet the submission requirements may subject the operator to penalties
under 40 CFR 1068.101. (g) Manufacturer Reporting to EPA

. With in 90 days of the end of each calendar year, the
manufacturer must send a n annual report of the use of AECDs approved under this section to the Designated Compliance Officer

. A manuf acturer may request an extension if it is impractical to meet this deadline as the result of an emergency situation occurring late in a given calendar year.
The annual report must include a d escription of each emergency situation precipitating each
AECD a ctivation and copies of the report s submitted by operators (or statements that an operator did not submit a report, to the extent known by the manufacturer ). ( h ) Submissions to EPA

. Notifications and reports submitted to comply with this section are
deemed to be submissions to EPA.

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( i ) Recordkeeping

. The manufacturer must keep records to document use of AECDs approved
under this section. ( j ) Anti

- circumvention

. We may set other reasonable conditions to ensure that the provision s in
this section are not used to circumvent the emission standards of this part.