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 you saw. You may share these with EMA members, but please be clear that 

these are merely staff-level drafts.
The potential 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 ideas 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 situations.

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 situation 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 approval 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 already 

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, activationActivation of the AECD cannot 

occur without the specific permission of the 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, manufacturersManufacturers 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 have the capability to track elapsed timeclock 

hours, manufacturers may alternatively design the engine to disable emergency AECDs within [TBD24] 

hours of cumulative engine runrunning time after the AECD is initially activated.

(4(2) The AECD must become 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)(43), inducement strategies related to operating SCR-equipped engines 

without reductant are considered to be emission controls.

(5) The engine must include an operator-activateda 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 “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.

(64) The AECD’s design must beis 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, reporting AECD use, and requesting resetting of the AECD.

Comment [SM1]: EMA is seeking clarification, 

perhaps in the Preamble, on the inclusion of indirect 

and delayed risks (e.g. banking system risks)

Comment [SM2]: Specify a more concise subset 

information to display.

Comment [SM3]: Discuss further how a new 

category of unattended and continuously operated 

equipment could be specified to have a different 

number of hours.

Comment [SM4]: Discuss further how a new 

category of unattended and continuously operated 

equipment could be specified to have a different 

number of hours.

Comment [SM5]: Discuss 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 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 such 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 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 manufacturer may reset the AECD only after the operator provides the operator’s 

name, mailing address, and a telephone number to contact the operatorsufficient 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 confirmation of a verbal request 

within 30 days after activating an emergency AECD. 

(i) This report must include all the following:

(A) Aof making the request, including a description of the emergency situation and the location of the 

equipment during the emergency, includingthe , 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) The reason for the use of the AECD during the emergency situation. For example, lack of DEF or the 

failure of an emissions 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) Contact name, mailing address, and telephone number information for the responsible company or 

entity. 

(ii) Such notifications and reportsrequests are deemed to be submissions to EPA. Where the written 

notification and reportconfirmation is not submitted by the operator, we maywill deem operation of the 

engine with an activated emergency AECD to be a violation of 40 CFR 1068.101(b)(1).

(32) If the operator fails todoes not submit the applicable notification and reportconfirmation 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 

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.

(543) Within 60 days of the end of each calendar year in which the certificate holder receives notification 

of anyauthorizes use of an emergency AECD, or receives a request for resetting an emergency AECD, by 

any engine or piece of equipment covered by its certificatethe 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 

reportconfirmation provided by operators (or statements that anthe 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]: Discuss further the appropriate 

number of days for this requirement.

Comment [SM7]: Discuss further the appropriate 

number of days for this requirement.

Comment [SM8]: Discuss further the appropriate 

number of days for this requirement.
year.confirmation). We may require more frequent reporting if we find that the certificate holder isdoes

not successful in collectingcollect or attempt to collect written confirmation for each situation. 

(ed) We may set other reasonable conditions to ensure that this provision is not used to circumvent the 

emission standards of this part.
The potential 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 ideas 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 situations.

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 situation 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 approval 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 already 

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 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, manufacturersManufacturers 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 have the capability to track elapsed timeclock 

hours, manufacturers may alternatively design the engine to disable emergency AECDs within [TBD24] 

hours of cumulative engine runrunning time after the AECD is initially 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 an operator-activateda 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 “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) The AECD’s design must be 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, reporting AECD use, and requesting resetting 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]: Specify a more concise 

subset information to display.

Comment [SM11]: Discuss further how a new 

category of unattended and continuously operated 

equipment could be specified to have a different 

number of hours.

Comment [SM12]: Discuss further how a new 

category of unattended and continuously operated 

equipment could be specified to have a different 

number of hours.

Comment [SM13]: Discuss 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 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 such 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 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 manufacturer may reset the AECD only after the operator provides the operator’s 

name, mailing address, and a telephone number to contact the operatorsufficient 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) Aa description of the emergency situation and the location of the equipment during the emergency, 

includingthe 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, a signature from an official acknowledging the conditions of the emergency 

situation (such as a county sheriff, fire marshal, or hospital administrator).

(B) The reason for the use of the AECD during the emergency situation. For example, lack of DEF or the 

failure of an emissions 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) Contact 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 of the engine with an activated 

emergency AECD to be a violation of 40 CFR 1068.101(b)(1).

(3) If the operator fails todoes not submit the applicable notification and report 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 

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.

(54) 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 

engine 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 emergency 

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 isdoes not successful in collectingcollect or attempt to 

collect written confirmation for each situation. 

Comment [SM14]: Discuss further the 

appropriate number of days for this requirement.

Comment [SM15]: Discuss further the 

appropriate number of days for this requirement.

Comment [SM16]: Discuss 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, Charles; 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 structural 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 (3rd) 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 

restructuring/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 captures 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 constructive to provide their review and 

comments to this version. Otherwise, please let us all know if anyone believes we should not use this 3rd

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 48105
The potential 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 controls 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 an emission controls 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 section, 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 are 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 

obtain 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: “EMERGENCY USE ONLY, 

SEE OWNERS MANUAL, PENALTIES APPLY FOR MISUSE.”

(3) Manufacturers may design and produce their engines 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, activation 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 is 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 must 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 conditions. 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 may be reset to the 

initial point of that sequence when the AECD is deactivated.

(i) The provisions of this paragraph (b)(7)(i) apply for engines used only to power an electrical 

power generator or a flood control pump, where the generator or pump is the sole 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 activated, 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 to operate unattended; that is, without 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 whether 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 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, 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) We 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 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 alarms that are active from the point when the AECD is activated 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 

civil penalty for such violations, according to 40 CFR 1068.101.

(3) Notification that the manufacturer will send the information from the operator’s report under 

paragraph (e) of this section to EPA and that federal regulation separately 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. The 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) The 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 active, 

including a statement whether or not the AECD was manually deactivated after the emergency 

situation had clearly ended.

(f) Operator Failure to Report. 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. Within 90 days of the end of each calendar year, the manufacturer

must send an 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 description of each emergency situation precipitating each AECD activation and copies of the 

reports 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 provisions 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 are 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 potential 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 controls 

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 an emission controls 

condition that inhibits the performance of an engine being used to rescue a person from a lifethreatening 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 section, 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 are 

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 obtain 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: 

“EMERGENCY USE ONLY, SEE OWNERS MANUAL, PENALTIES APPLY FOR 

MISUSE.”

(3) Manufacturers may design and produce their engines 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, activation 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 is 

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 must 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 conditions. 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 may be reset to the initial point of that sequence when the AECD is 

deactivated.

(i) The provisions of this paragraph (b)(7)(i) apply for engines used only to power an 

electrical power generator or a flood control pump, where the generator or pump is the 

sole 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 

activated, 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 to operate unattended; that is, without 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 whether 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 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) We 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 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 alarms 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 after its activation, independent of the amount 

of time the AECD was active. engine was operated. 

We 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 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 civil penalty for such violations, according to 40 

CFR 1068.101.

(3) Notification that the manufacturer will send the information from the operator’s report 

under paragraph (e) of this section to EPA and that federal regulation separately 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. The 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) The 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 

active, including a statement whether or not the AECD was manually deactivated after the 

emergency situation had clearly ended.

(f) Operator Failure to Report. 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. Within 90 days of the end of each calendar year, the 

manufacturer must send an 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 description of each emergency situation precipitating each 

AECD activation and copies of the reports 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 provisions in 

this section are not used to circumvent the emission standards of this part.